[Present, Chancellors Rutledge, Buhke and Marshall,.]

#### George Parker *vs.*James Kennedy.

The defendant denying by his answer the allegations of the bill, which was filed for a discovery, and the answer not being contradicted sufficiently distinctly, or positively, by evidence and by circumstances, the bill was dismissed with costs.

MAY, 1801.

THE bill charged that the defendant assigned and delivered to the complainant by a blank endorsement, a bond executed by Benjamin Singleton, and dated the 12th' Dec. 1786, conditioned to pay 486/. with interest, at a discount of 50 per. cent; that the consideration was 212,500, bricks which he has delivered.

That the complainant took the bond on the express terms that Kennedy should guarantee the payment of the bond, which he promised to- do. That at that time it was the general opinion of the counsel at the bar that a blank endorsement of a bond, imported a guarantee of the debt. That the complainant instituted a suit on the bond, against the obligor, and obtained judgment and issued execution ; on which the sheriff made a return of *nulla*bona, Singleton being insolvent.

That the complainant then sued Kennedy on the endorsement, and the jury decided under the direction of the court, that a blank endorsement on a bond does not import a guarantee of the debt, and found a verdict for the defendant Kennedy. (On motion for a new trial, the then chief justice John Rutledge, and the justices Burke and Grim-ke thought the verdict right, and refused to grant a new *38The justifccs Waties and Bay, were of a different opinion. See 1 Bay’s reports, p. 392.)

That Kennedy is suing the complainant at law on ano-tper bond, for,the sum of 236/. and is urging the same to judgment.

The bill prays for a discovery, whether the defendant Kennedy did not agree at the time of the assignment of Singleton’s bond, in blank, to guarantee the payment of the bond to the complainant, and whether he did not in consequence thereof retain some funds of Singleton, (arising from the sale of lands) to secure himself. The bill also prays relief by having the guarantee established, and to have the amount discounted against the bond of complainant put in suit by Kennedy at law.

The defendant in his answer admitted that he assigned the bond of Singleton to the complainant, in blank, at *SO*per cent, discount, as stated in the bill. But he denies positively that he agreed to guarantee the bond; on the contrary that he refused to do so ; and he denies that he retained any funds of Singleton’s in his hands to secure himself, but avers that he has .paid them all over to those who are entitled to them. The defendant relies on the verdict and judgment at law, on the question of the guarantee; and he admits that he has sued the complainant on another bond, and intends to recover the money due thereon.

At the hearing of the cause, Mr. Lance gave evidence, that Mr. Kennedy, (to whom he applied on the part of Mr. Parker, on the subject of Singleton’s bond, after the insolvency of Singleton,) informed him he had funds in his hands to secure himself.

John Parker corroborated this testimony.

The cause was fully argued, and Chancellor Rutledge afterwards delivered the decree of court.

The intent of this bill is to oblige the defendant to discover whether he did not at the time of transferring Singleton’s bond-to the complainant, agree to guárante it i *39And whether in consequence of such agreement, he has not retained in his hands the purchase money of a planta- , . , , , . . : tion which was sold on Singletons acconnt r And having done so, that he should be considered in the light of .a trustee for complainant, andbe obliged to accoimt with him for the said bonds.

The defendant in his answer positively swears that he never agreed to guarantee the bond, nor did he ever consider himself responsible on failure of the obligor, to pay it. He also denies that he has not accounted for the net sales of the plantation, and avers that he has paid the same to-those who were entitled to receive it; nor had he ever any idea of retaining the money to indemnify him against the said Singleton’s bond.

In an action at law which was brought by complainant against defendant to recover the money from him as guarantee of the bond, by virtue of a blank endorsement, Singleton having failed to pay it, and become insolvent, the court determined onsolemn argument, thata blank indorsement on a bond, did not make the indorser responsible on failure of the obligor, to pay the money. As that question did not decide the particular merits of complainant’s claim, to wit, the agreement to guarantee, he should have brought the action of assumpsit^pinst défendant, in order to bring the whole merits before a jury, the question-being properly triable at law. He has thought fit however rather to bring this suit, in order to searclj^the conscience of the defendant. In doing so, he has got a most positive and unequivocal answer denying both the guarantee and the retaining the purchase money of the plantation. It was attempted to be proved that the defendant had acknowledged funds of Singleton in his hands, and that he had said he purchased the plantation to secure himself for this particular debt; but the proof by no means came up to it. It amounted to no more substantially, than that he had first purchased to secure himself for his engagements against Singleton’s debts, and it is no proof on the part of defendant, that he has paid several debts on Singleton’s account. *40It maybe a hard case on the complainant, but instances of this kind have occurred, and will happen again, so long as . . . .. .. persons are so extremely incautious m making their contracts. It appears to have heen a speculation altogether on the part of complainant, for he got the bond from defendant, at a discount of fifty per cent. If Singleton had been solvent, (and he was not known to be otherwise at that time') complainant would have received the whole debt, and been- very well contented. This court does iiot assess damages it is the peculiar province of a jury. — • Complainant might, and ought to have brought his action to have had his damage s assessed. He did not. He has slept upon his rights, and if eventually he suffers by it, the inconvenience will have been occasioned altogether by his own laches. The court sees no propriety in directing an issue, because the complainant may, if he pleases, bring his action without the sanction of the court. Ordered therefore, that the injunction be dissolved, and the bill be dismissed with costs.