said to be evidence for the defendant. A bill, however, which seeks a discovery from the defendant, in regard to a demand or defense properly cognizable at law, but which can not be established there for want of proofs, gives to the answer of the defendant a different force and effect. The answer, in such a case, is to be treated as matter of evidence, and not as matter of pleading; and is to be used by the plaintiff obtaining it, as evidence on the trial of the controversy, before the proper forum. According to the English practice that forum is, as a general rule, a court of common law, the chancery cause usually terminating with the discovery obtained, or the failure to obtain it. With us the general rule is the other way, the court of equity retaining the cause after the discovery has been obtained, and proceeding to give the proper relief founded upon it; instead of turning the parties over to a common-law tribunal, in order that the answer may be used as evidence there; unless, indeed, the discovery was sought and obtained in order to be used in a pending common-law action between the parties.

The effect of treating the answer to a bill of discovery as evidence is, that on the trial before the proper forum, whether of law or equity, the whole of it is to be read, if used at all, as the testimony of a witness; but of a witness deposing in his own cause, and whose admissions against himself are to be taken as true, while his assertions against his adversary may be disproved or discredited, and are subject to the ordinary tests of consistency, probability, and candor, or the reverse. The answer gains no artificial force by being responsive to the bill; nor is any part of it pertinent to the discovery to be rejected, because affirmative matter in avoidance of that which is admitted to be true. These are rules of pleading and not of evidence, and the answer to such a bill does not make up issues to be tried in the cause, but furnishes evidence to be used collaterally on the trial of the common-law action, or on that which is substituted for it, when the court of equity, to prevent circuity, expense, and delay, undertakes itself to give or refuse redress after the discovery has been made. On the common-law trial, so much of the answer as makes in favor of the defendant may be disproved by its context, or by extrinsic evidence, and on the other hand may be sustained by corroborating testimony: and this is equally true of the substituted trial in equity.

The prominent facts disclosed by the defendant's answer in this case are, that the note in question was transferred by the defendant to the plaintiff, for a valuable consideration, paid by

the latter to the former, without indorsement. By declining to indorse, the defendant avoided the responsibility of an indorser; but he could not, without an agreement or understanding to that effect, avoid the responsibility of warranting the genuineness of the instrument. That is a guaranty which the law imposes upon the transfer, for a valuable consideration, of bills, bank or promissory notes, and other assurances for money, though without indorsement. The person so transferring impliedly undertakes that the instrument is genuine, in other words, that it is what it purports to be; and if it turns out to be a forgery, there is a failure of the consideration, which subjects him to the repayment of the money he has received. Nor is it material whether the person making the transfer receives the consideration for his own use, or for the use of another; unless he is acting as an agent, and discloses not only his agency, but the name of the principal for whom he is acting; in which case he is not a party to the contract, the contract being made with his principal through his agency.

In this case the defendant can not escape liability for the genuineness of the instrument by the fact that he brought it to the plaintiff pursuant to the request of the latter, that he would bring him good paper for discounting at two per cent. per month. The assertion of this fact is no averment that in the transfer of the note the defendant acted as the agent for the plaintiff, and such an averment would be absurd upon its face, inasmuch as according to his own admission he brought the note for sale and actually sold it to the plaintiff, which in the nature of things he could not do as the plaintiff's agent. If he was in any wise acting as agent for the plaintiff, it could only have been in purchasing paper for the plaintiff with the plaintiff's funds, in which case the transaction would have been accomplished by the defendant's purchasing such paper, which, if he acted in good faith, and without negligence, would thereby have become ipso facto, the property of the plaintiff; but nothing of the kind is pretended: the paper was to be discounted by the plaintiff after it should be brought to him, and he was at liberty to accept it or reject it. The transaction, therefore, could have been nothing else but a sale of the note by the defendant to the plaintiff; and whether it belonged to the defendant or to another person for whom he was acting, was to the plaintiff wholly immaterial. It was only material to the defendant, who if he was not the owner of the instrument, and wished to avoid responsibility as

vendor thereof, ought to have made the contract, not in his own name, but in the name of the owner.

That the defendant transferred the note to the plaintiff in the name of another person as owner thereof, is not asserted, nor at all pretended, unless by a side wind, and in this and in other respects the answer is evasive and suggestive, leaving to intendment and inference what the defendant would not venture directly to allege as matter of fact. This is remarkably true in two other important particulars. The defendant in his answer says, that in his second interview with the plaintiff, when he could not obtain from him the money to be paid for the note, he spoke of returning it to "the drawer" (in the previous answer withdrawn, to "the owner"), from which he would have it inferred, though he does not assert it, that the plaintiff was in effect informed that he was purchasing accommodation paper, put into circulation by the drawer for the purpose of raising money, at a discount of more than lawful interest, which would have been a usurious transaction. And it is not until his answer to the amended bill that he discloses the fact, that he derived a benefit to himself from the transaction with the plaintiff, and in disclosing misrepresents it; for the evidence is perfectly satisfactory to prove that he accounted with the maker at a discount of four per cent. per month, while the discount to the plaintiff was only of two per cent. per month, and that the difference was actual profit to the defendant himself.

Decree reversed, with costs, and decree that the defendant pay to the plaintiff three hundred and thirty-six dollars, the amount received from him, with interest thereon from the eleventh of June, 1834, till paid, and the costs.

CABELL, P., absent.

SELLER OF NOTE GUARANTEES ITS GENUINENESS: See Baxter v. Duren, 50 Am. Dec. 602, and note 606, where this subject is discussed at some length. ANSWER TO BILL MAY BE DISPROVED, HOW: See Maddox v. Sullivan, 44 Am. Dec. 234; Dugan v. Gittings, 43 Id. 306.

♦ ANSWER, WHEN EVIDENCE AND WHEN NOT: Willis v. Henderson, 38 Am. Dec. 120; O'Brien v. Elliot, 32 Id. 137; Jones v. Hardesty, Id. 180.

BILL OF DISCOVERY, WHEN RETAINED AND WHEN NOT: See Kinloch v. Hamlin, 27 Am. Dec. 441; Price v. Tyson, 22 Id. 279; Chichester v. Vass, 4 Id. 531.

THE PRINCIPAL CASE IS CITED in Nagle v. Newton, 22 Gratt. 825, to the point that where a court of equity acquires jurisdiction of a case it will retain it, and settle the whole matter in controversy; and in Miller v. Blose, 30 Id. 754, to the point that an answer not responsive but merely affirmative is not evidence in itself. It is also distinguished in Powell v. Manson, 22 Id. 190.

HUMPHREY v. HITT.

[6 GRATTAN, 509.]

SURETY OF EXECUTION DEBTOR IS NOT RELEASED BY MERE COUNTERMAND

by the creditor of an execution after it goes into the hands of the sheriff but before it is levied.

INJUNCTION to judgments obtained by Humphrey against Hitt. Humphrey had recovered judgments against one Yerby, and, at a subsequent term, against Hitt, upon bonds in which Yerby was principal and Hitt was his surety. Executions issued on the judgments against Hitt, and were placed in the hands of the sheriff; but on his going to the house of Yerby to levy them, the latter produced to him a written order from the plaintiff to return the executions to the clerk's office, there to remain until his further order. Whereupon the sheriff returned them to the office, with the return indorsed that they were returned by the plaintiff's order. The property which Yerby had at that time was subsequently taken and sold under other executions. Executions then issued on the judgments against Hitt, who applied for an injunction to stop proceedings, and upon the hearing the injunction was made perpetual. Humphrey applied for an appeal from the decree, which was allowed. Other facts appear

from the opinion.

Morson, for the appellant.

Robert E. Scott, for the appellee.

By Court, BALDWIN, J. It is perfectly well settled, and has been very properly conceded in the argument, that a surety is not absolved by the want of diligence on the part of the creditor in regard to his demand against the principal debtor. A defense on the ground of mere laches would, indeed, be inconsistent with the relation of the parties. The obligation of a surety is not conditional, but absolute. His undertaking to pay is not in the event of the inability or unwillingness of the principal, but at all events, and under all circumstances, as much so as if he were himself the sole debtor. Such is the form of his obligation (unless specially qualified), whether separate or joint, and such its true intent and meaning; and it is founded upon a lawful and sufficient consideration, the credit given to the principal by his procurement. It is the duty of the surety, as well as the principal, to see to the payment of the money, and the forbearance of the creditor is a tacit indulgence given to both, in which the acquiescence of the one is equally significant with that of the other.

Hence it is, that if the obligation be several, the creditor may pursue the surety only, that if it be merely joint, he may bring his action against the survivor, or the representative of the deceased, at his option, as if both were principals; that after a several judgment against the principal, he need not sue out execution thereupon, but may pursue and coerce payment from the surety; that upon a joint judgment against both, he may cause execution to be levied at his pleasure upon the person or property of either; that he may pursue the surety personally, notwithstanding a collateral surety given by him or his principal.

It follows that though a discharge of the debt, whether by principal or surety, is available for either, yet, that the surety can have no peculiar equity against the creditor to be absolved from his obligation, arising directly from the mere relation between them; but that such equity must be derived from the equities of the surety against his principal, and the infringement thereof by the conduct of the creditor. If the remedies or the rights of the surety against his principal be destroyed or defeated by the creditor, that furnishes a plain equity on the part of the surety against the further pursuit of the creditor; which is either absolute, or to the extent of the injury he has sustained.

The remedies of the surety against his principal are: 1. To pay the debt, and recover the same back from the principal, which he may do by action, or in most cases after judgment or execution against him, by the summary statutory proceeding by motion. 2. If he is apprehensive of suffering by reason of the forbearance of the creditor, he may file his bill in chancery against the principal to compel him to make payment himself to the creditor. 3. Though, independently of statutory provision, the surety is not absolved from his obligation, by the refusal of the creditor to sue the principal, after having been requested by the surety to do so, yet the latter may, by his bill in equity, invoke the authority of that forum to compel the creditor to bring his action against the principal, upon being indemnified against the consequences of risk, delay, and expense; it being reasonable that such an act of benevolence should be extended to the surety, when it can be done without prejudice to the creditor. This exercise of equitable jurisdiction, though in form against the creditor, is substantially a remedy for the surety against his principal; the proceeding at law, though conducted by the creditor, being in truth for the benefit of the surety. 4. A statutory remedy is provided in certain