The whole case depends upon the determination of a simple question of fact. The plaintiff claims that he was to be allowed the sole control of the judgment, to the end that he might enforce its collection out of the property of Bones. Upon the other hand Paine, the agent of the Bank, with whom the arrangement was made, contends that he never surrendered control of the judgment, but that he simply permitted Aiken' to have judgment recovered in order that he might enforce payment of one-half the debt from Bones; Aiken contending that, unless judgment was obtained, Bones would pay nothing. Respecting this question the burden of proof is upon the plaintiff. ’Each member of the court has separately read the abstract, and, from such reading has individually reached the conclusion that the plaintiff has failed to sustain the allegations of his petition.
A review of the testimony would subserve no useful purposes. The unwillingness of Paine to pursue the execution as against Bones, is explained by the fact that such a course promised to be attended with much expense and delay, and possibly'to be in the end fruitless. "We unite in the opinion that the petition was properly dismissed.
Affirmed.