_ 20 rmianan neromna.
though it may fetch either sum when put up at auction. The rule seems to
be that the burden of proof is on the creditor, in a case of this kind, to
show that the surety has not been injured by the transaction. Brandt, Sur.
-§ 370. It follows that the allegations excepted to are not impertinent, but
constitute a good defense to the relief prayed for, as to thesedefendants.
The plaintiff must either deny them by a replication, or confess and avoid
them by proper amendments to the bill." 23 Fed. Rep. 573.
Thereupon, on June 1, 1885, an amendment to the bill was filed,
setting out in detail the sale of the 862.46 acres aforesaid, and the
disposition of the proceeds thereof, as above stated; and on Septem-
ber 15th a stipulation was filed to the effect that the answer to the .
original bill should stand as the answer to the amendment also, and
admitting that the allegations in the amendment, when not denied by
the answer, except the one concerning the value of the lands sold in
1876, are true; and on October 28th the usual replication was nled
to the answer.
No evidence was taken in the case, except the deposition of Mr.
Lewis, by the defendants, on the question of the bona fides of the
transfer of the notes and mortgages, and his consent as creditor to
the sale of Cross’ land in 1876. On April 6th a stipulation concern-
ing the facts was filed, and the case was finally heard and submitted
on the pleadings, and this stipulation and deposition. From these it
appears (1) that there is now due on the note of 1871 the sum of
$45,137, with interest thereon from December 22, 1881, at 10 per
centum per annum, and on the one of 1873 the sum of $10,000, with
interest thereon from January 25, 1879, at 12 per centum per annum,
less $1,686.35 paid thereon on February 1,1883; (2) that the appraise-
ment aforesaid was openly made, without fraud, and that the persons
who made the same would, if called as witnesses, "approve and ver-
ify" the same "in all particulars;" (3) that the defendants can pro-
duce five persons, who live and own land in the immediate vicinity of
the 862.46 acres of land sold in 1876, and qualified to give an opin-
_ ion concerning the value thereof, who would, if called as witnesses,
testify that the same were worth at the time, "at private sale, in the
ordinary course of business, ” $13,360, instead of $8,593.81, for which
they were sold,-a difference of $4,766.19. i
On these facts the defense that the creditors released the property
of the principal debtor without a corresponding reduction of the debt,
to the injury of the surety, has not a leg to stand on.
The allegation in the answer that the property sold in 1876 was
worth $20,000 is not responsive to the bill, and therefore not evidence
for the defendants. It is new matter, set up as a defense, and must
be proven. Hart v. Ten Eyck, 2 Johns. Ch. 87; Story, Eq. Pl.§ 849a;
2 Story, Eq. Jur. §§ 1528, 1529. There is no evidence to support it.
Nor does it follow that because five persons, owning land in the vi-
cinity of these premises, would swear that the property disposed of ·
in 1876 was worth near 50 per centum more than it brought, that it
was sold for less than its market value. It was sold under exception--