C. P. SMITH v. DAYID COBLE.
Where a note was endorsed and delivered upon a parol agreement that it should be security for money then borrowed of the endorsee by the endorser, a court of equity will enforce such agreement and enjoin an execution (here a ca. sa.) obtained at law by the endorsee.
To such a suit in equity the surety upon the ca. sa. bond is not a necessary party.
Bill, filed to Fall Term 18G3 of the Court of Equity for Guilford. At that term a demurrer was put in and set down for argument, and at Spring Term 1867 the canse was transmitted to this court.
The bill stated that in 1859 the plaintiff borrowed of the defendant four dollars, and thereupon deposited with him a note upon one Causey for about sixty dollars, and at his request endorsed the said note, — it being understood and agreed between them, however, that it was only a security for the repayment of the money borrowed; that afterwards the plaintiff tendered to the defendant such money, and requested him to give up the note — which the defendant refused to do, claiming -that he bad bouglit it; that afterwards the defendant had warranted him upon his endorsement, *333and. obtained a judgment against him, and subsequently had had him arrested under a ca. so.; that he gave bond for his appearance under that execution with one W. M. Young as his surety, and that subsequently a judgment had been taken against them for not appearing, &c.
The prayer was for an injunction, and tor other relief.
The defendant demurred for want of equity, and specially because Young was not made a party.
Phillips & Battle, for the complainant.
No counsel contra.
Reade, J.
If the allegations in the bill are true, — and the demurrer admits that they are, the plaintiff’s equity is, to have the bond mentioned in the bill declared to be a pledge or security for the sum of $4, lent by the defendant to the plaintiff, and, upon the payment of that sum with interest by the plaintiff to the defendant, to have a perpetual injunction against the fieri facias which the defendant has sued out against the plaintiff and his surety Young,and also to have the defendant deliver up the bond to the plaintiff with the defendant’s endorsement without recourse ; or if the defendant has collected the amount of the bond out of the obligor, then the plaintiff is entitled to an account.
The objection that the plaintiff’s surety Young, is not, and ought to be, a parly plaintiff, cannot be sustained.
The demurrer is overruled with costs. The injunction will be continued until the hearing.
Per Curiam
Demurrer overruled.