158

Court of Appeals of Virginia.

Same.

1830 . as Harrison Waite the principal, was insolvent, King andP° rte rfield were thus liable at law for the whole amount.King That the reason why this matter was not relied on as a de-Smith &c. fence against the motion for award of execution on thePorterfield bonds, was > th at King never had any notice of the motion.

The bill, therefore, made Smith, Spalding ^ Macomb, theadministrator of Seevers the deputy marshal (who was nowdead), Waite the principal, and Porterfield the co-surety,parties defendants; and prayed that Smith and Spaldingfy Macomb should be injoined from further proceedings atlaw upon the forthcoming bonds. The injunction wasawarded.

The defendants Smith the creditor in one of the bonds,the administrator of Seevers the deputy marshal, and Waitethe principal debtor, filed their answers. Neither of themdirectly denied the allegations of the bill, as to the condi-tion on which King joined in the bonds. But they allaverred their belief, that those allegations were untrue ; andthey stated several circumstances that seemed inconsistentand irreconcileable with King's account of the transaction.

A son of the plaintiff (who was in his fifteenth year atthe date of the bonds) deposed, that he was present whenhis father signed them ; and he testified directly and posi-tively, to the truth of the material allegations of the bill.On the other hand, there were depositions of several wit-nesses, proving expressions and conduct of King, whichevinced, that he regarded the bonds as his deeds after hehad been apprised what parties had in fact executed them.

Pending this suit, Porterfield, the other surety, also ex-hibited a bill in the same court; in which, referring to King'sbill, he stated, that he had signed the bonds, upon the ex-press condition that King should join in them as his co-surety, otherwise, they should not be obligatory on him ; andthat, finding from King's bill, that he had never so executedthem as to make them his deeds, if they were not obligatoryon King, then neither were they obligatory on Porterfield.Therefore, the bill prayed an injunction to stay further pro-