
    Evans and Ellis v. Menefee.
    Where a suit in chancery was commenced against two, one of whom answered, but the other failed to answer, and the plaintiff dismissed his bill as to the defendant who bad answered, and took a decree against the other — held, that in this there was no error, and the defendant, who failed to answer,, must seek relief by a new suit in equity. .
    THIS is a suit in equity.
   Tompkins, J.,

delivered the opinion of the Court.

Evans, one of the plaintiffs in error, had sold a house and lot in the town of Cape Girardeau, to Menefee, the defendant, for five hundred dollars. The defendant executed to Evans, two single bills, obligatory, for two hundred and fifty dollars each, to secure the payment of this money. These notes were assigned by Evans to Ellis, the other plaintiff in error. Ellis sued-Menefee on these two notes, Menefee files his bill against Evans and Ellis, in which he states that Evans had no right to the house and lot, which were the consideration he had received for the notes.

The Circuit Court granted an injunction, to restrain further proceedings in the suits on these notes. Evans filed, at several times, three answers; in the two first, he admitted his want of title; in the last he slates that he had acquired a title, and declares his readiness to convey. The plaintiff below, who is defendant here, dismissed his hill as to Evans, Ellis had not answered, and the bill being taken for confessed against him, and the injunction made perpetual as to him, both of the defendants below appealed. Evans had no right to appeal; the bill being dismissed as to him, he was no party to the record. The Court finds no error in mailing the decree final against Ellis. If he has any merits, he must find relief by a new suit in equity.

The judgment of the Circuit Court is affirmed against Ellis, and the appeal dismissed as to Evans.

The appeal mdst he dismissed as to Evans. Ellis and Evans will each pay .hi# respective part of the costs of this appeal, and Ellis will pay the costs of suit in the Circuit Court.  