
    Lewisburg.
    Griffith & als. v. Reynolds.
    (Absent Brooke, J.)
    
    1847 July Term.
    
    Bill for an injunction to a judgment obtained against plaintiff, on a note executed by him as surety, charges that his principal had induced him to sign the note by fraudulent misrepresentations as to the purpose for which the note was given, and of the plaintiff’s liability on account thereof; but does not charge or prove fraud or misrepresentation by the defendant to whom the note was executed. Held : The bill states no case for relief.
    
      Dioclesian Reynolds obtained from the judge of the Circuit Court of Alleghany county, an injunction to a judgment recovered against himself and William Byer, by Orlando Griffith, who sued for the benefit of Bell & Dickinson.
    
    The bill set out that the plaintiff was an illiterate man and could neither read nor write ; that in August 1839, Byer came to his house and represented to him that he had purchased of Orlando Griffith a tract of land on which there was a mill; that it was a very great bargain, but that unless he could get the plaintiff to become his surety for the purchase money, ho must lose the advantage of the purchase: that the plaintiff could become the surety without any danger of loss, as by the laws of Virginia, the land purchased was always bound for the purchase money; and that if Byer should be unable to pay for the land, it would be sold for the purchase money, and being of value far above the amount for which he asked the plaintiff to become surety, it would at any time sell for an amount sufficient to pay the debt for which he asked the plaintiff to become surety. That the plaintiff wishing to assist Byer if he could do it without risk to himself, (as from the false declarations of Byer he believed he could,) consented to become his surety for the purchase of the land from Griffith. That on obtaining his consent to become surety, Byer produced four several bonds for the sum of 100 dollars each, which he read to the plaintiff as being payable in one, two, three and four years from the date, to Orlando Griffith, in consideration of a certain tract of land which he the said Byer had purchased from said Griffith.
    
    The bill further set out, that the plaintiff believing that the bonds were for the purchase money of the tract of land aforesaid, executed and acknowledged them in the presence of the subscribing witness. That subsequently, Griffith had brought suit on that one of these bonds which fell due the first of September 1840, for the benefit of Bell & Dickinson: that at the April term of the Court for 1842, plaintiff filed a plea of non est factum to the note, which purported to be executed for rent of certain lands rented by Byer from Griffith. That the plaintiff had been induced by Byer to withdraw his plea, who represented that he had paid the note, and that he would be able to prove the payment; hut that judgment was recovered against both Byer and himself for the debt aforesaid, with the interest and costs.
    The bill charged that the plaintiff’s name was obtained as surety to the note through his ignorance and the misrepresentations of Byer; that he did not become nor would he have become surety of Byer for rent; nor would he have become surety for land if Byer had not induced him to believe that it was liable for the purchase money. That it appears that the bond was executed for rent, and not for the purchase money of land, and in this he charged that a fraud had been practised upon him. The bill further alleges that Byer is notoriously insolvent. The plaintiff then called upon Byer to say upon oath whether the facts stated in the bill were not true; and he called upon Griffith and Bell & Dickinson to say whether they participated directly or indirectly in obtaining the plaintiff’s name as surety, and in the fraud practised upon him.
    
      Griffith answered the bill, and denied that any fraud or misrepresentation was used by him, or by Byer with his consent or knowledge, to procure the plaintiff’s signature to the bonds. He denies that he ever sold Byer any land, or that he ever heard of Byer making any such representation; and says if Byer ever made such representation it was without his knowledge or consent. Bell & Dickinson answered, saying that they had no knowledge of the circumstances attending the execution of the bond; that they did not participate directly or indirectly in obtaining the name of the plaintiff as surety to it j and they deny all fraud in the premises.
    
      A number of witnesses were examined, but this Court was of opinion that the evidence did not sustain the charges in the bill; though the Court below perpetuated the injunction. From this decree perpetuating the injunction, Griffith and Bell & Dickinson applied to this Court for an appeal, which was allowed.
    
      A. & J. Damron, for the appellants.
    
      Skeen, for the appellee.
   Baldwin, J.

delivered the opinion of the Court.

The Court is of opinion, that the appellee has not only failed to prove that his execution of the obligation in the proceedings mentioned, as surety for his co-obligor Byer, was procured by the alleged fraudulent conduct of the latter, but has not, even upon the face of his bill, shewn any ground whatever for being relieved, whether at law or in equity, from payment of said obligation to the appellant, the creditor therein ; there being no pretence that the appellant was in any wise implicated in the alleged fraud. The Court is therefore of opinion that the said decree of the said Circuit Court is erroneous: and it is adjudged, ordered and decreed that the same be reversed and annulled, with costs against the appellee Reynolds. And this Court proceeding to render such decree as the said Circuit Court ought to have rendered, it is further adjudged, ordered and decreed that the injunction granted the plaintiff be dissolved, his bill dismissed, and that he do pay to the defendants Griffith and Bell & Dickinson their costs expended in the defence thereof.

Daniel, J.

I concur with the majority of the Court in the opinion, that the appellee failed to prot'e the allegations of his bill, and that the decree of the Circuit Court in granting him the relief prayed for is therefore erroneous.

I do not consider it necessary to express any opinion as to whether the facts alleged in the bill, if pleaded and proved, might not have constituted a good defence to the suit at. law, or whether declining to defend himself at law the appellee might not have been entitled to relief in a Court of Equity, on proving the case stated in his bill.  