domiciled inhabitant of the state of Rhodesuit for divorce." It may be considered Island. The wife was at that time living in some jurisdictions that the appropriate in Asheville, North Carolina, for her health, proceeding for establishing the wrongs with the intention of making said place her which entitle a wife to an independent dompermanent home, and contended that she icil is a proceeding for divorce a vinculo or was a citizen of North Carolina, and there- a mensa et thoro, and that, in consequence fore not liable to a personal tax in Rhode of the difficulties of establishing these Island. There was no abandonment. The wrongs in a collateral inquiry, the courts persons were living apart, but the unity of should require an adjudication by a divorce the marriage relation existed undisturbed. court which determines finally and for all No question of divorce was involved. The purposes the status of the wife. See Minor, court said: "After a careful examination Conf. L. § 47. But this is rather a rule of of the authorities, however, we have come to procedure or of evidence than a rule of the conclusion that, though a wife may ac- right, and is analogous to the rule of equity quire a domicil distinct from that of her that a creditor shall establish his right by husband whenever it is necessary or proper a judgment of law, before attacking in equifor her to do so, as, for instance, where ty a fraudulent conveyance. There seems the husband and wife are living apart by to be no conflict of authority as to the point mutual consent (Re Florance, 54 Hun, 328, that, by the delictum of the husband, the 7 N. Y. Supp. 578); or where the wife has wife is immediately absolved from her duty been abandoned by the husband (Shute v. to follow and dwell with him, and that she Sargent, 67 N. H. 305, 36 Atl. 282); or for is thereafter entitled, as a matter of right. purposes of divorce (Ditson v. Ditson, 4 R. to choose her own domicil. We are of the I. 87); or, in short, whenever the wife has opinion that the question whether, in order adversary interests to those of her hus- to assert or establish this right in a coliatband, she cannot acquire such a domicil eral proceeding, she must first procure a so long as the unity of the marriage rela- judicial decree establishing her status, as tion continues, notwithstanding that from against her husband and all the world, is considerations of health, as in the present a distinct question. If a plea in abatement case, or of expediency, one of the parties, had raised the question of the wife's domiwith the consent of the other, is actually living in a different place from the other." See also White v. White, 18 R. I. 292, 27 Atl. 506. cil, and, before a hearing on the plea, she had applied to the divorce courts of Rhode Island and procured a decree of divorce, that decree, so far as the question of citThe defendant, now plaintiff in error, con- izenship was concerned, would give her no tends that "the proposition that the excep- new rights, but would furnish her with jution made in divorce cases to the cominon- dicial evidence that before the bringing of law rule as to the domicil of the wife fol- her action she was a citizen of Rhode Islowing that of the husband does not extend land. The rulings of the circuit court as to proceedings other than a suit for divorce to the legal rights of a deserted wife, in was expressly declared by the Supreme the case at bar, were in accordance with the Court in Barber v. Barber, 21 How. 582, law as stated in Cheever v. Wilson, 9 Wall. 16 L. ed. 226." We do not so read this 108, 124, 19 L. ed. 604, 608: "The rule is opinion. The point there involved was that she may acquire a separate domicil whether a woman who had been divorced whenever it is necessary or proper that she a mensa et thoro might establish an inde- should do so. The right springs from the pendent domicil. It was decided that she necessity for its exercise, and endures as could. It was neither decided nor intimated long as the necessity continues. The proin the opinion that an independent domi- ceeding for a divorce may be instituted cil could not be established without a ju- where the wife has her domicil." This imdicial decree. The court seems, however, to plies that the domicil may be acquired prior have recognized the following principles: to and independently of proceedings for diThe rule that the domicil of the wife is that vorce. And this implication is in agreement of the husband is probably found to rest with the express decision of the Rhode Is upon the legal duty of the wife to follow land court. Moreover, various expressions and dwell with the husband wherever he of the Supreme Court seem to recognize goes. That, upon the commission of an of- that, if the wife is living apart by the fault fense which entitles her to have the mar- of the husband, the rule that his domicil riage dissolved, she is discharged thereby immediately, and without a judicial determination of the question, from her duty to follow and dwell with him. That if the husband abandons their domicil and his wife, and relinquishes altogether his marital control and protection, he yields up that power and authority over her which alone make his domicil hers. Upon page 594, 21 How., and page 230, 16 L. ed., of the opinion, in a quotation from Bishop, appears this language: "Courts, however, may decline to recognize such domicil in a collateral proceeding; that is, a proceeding other than a is her domicil is inapplicable. Thus, in The question whether the wife, in order to bring suit as a citizen of another state from that in which her husband is domiciled, must establish her right to acquire a separate domicil by the judgment of a proper tribunal in a direct proceeding for that purpose, is one that presents difficulties. It may be said that there are practical difficulties in trying collaterally the relations of husband and wife, and in determining whether or not the husband has been guilty of such a delictum as justifies a separate domicil. But similar difficulties do not preclude a husband from asserting, in defense of an action for supplies furnished to a wife, the adultery or other misconduct of the wife. Such cases involve a collateral inquiry into the rights of husband and wife arising from a breach of the obligations of marriage, yet it has never been held that the husband must establish the fact of the wife's delictum in a direct proceeding for that purpose. Gill v. Read, 5 R. I. 343, 73 Am. Dec. 73. The wife may not desire a divorce a vinculo or a mensa et thoro; she may be ready to condone the fault of the husband in case he shall return; she may desire, for her own sake or that of her family, to avoid publicity; or she may die before she has established her rights by a judicial decree. The difficulties that might arise from adopting a rigid rule that the wife's domicil shall be presumed to be her husband's until she overcomes this presumption by a judicial decree seem more serious than those that would arise from trying the question of domestic relations collaterally. We should hesitate long before deciding that the only exception to the rule that the domicil of the wife follows that of her husband is in judicial proceedings whose express object is to show that the relation itself ought to be dissolved or modified, since there is grave danger that serious injustice might arise. See Le Sueur v. Le Sueur, L. R. 1 Prob. Div. 139142: Eversley, Dom. Rel. (1896) p. 167. 2 Bishop, Mar. & Div. §§ 114, 115, upon which counsel for the town relies, seems to recognize that the rule should not always prevail in non-divorce cases. Furthermore, upon principle, it is difficult to see why a wife who is completely abandoned by her husband, even in consequence of her own fault, should be precluded from establishing an independent domicil. If the husband, justifiably or unjustifiably, renders it impossible for her to dwell with him, and voluntarily relinquishes altogether his marital control and protection, so that the abandonment is a completed fact, it cannot be said, in strictness, that her dwelling apart from him is her continuous fault. Her original fault may have justified the abandonment, but his renunciation of his former obligations keeps her from his home, and if she must find for herself another home, and from necessity or convenience goes to another state, it is difficult to see why she should be precluded from the ordinary rights of a citizen of that state. The expressions of the Supreme Court in Atherton v. Atherton, 181 U. S. 155. 45 L. ed. 794, 21 Sup. Ct. Rep. 544, which relate to a wife living apart without sufficient cause, or through an unjustifiable refusal to live with the husband, do not cover a case in which the living apart is caused by the husband's total abandonment of the wife. In the present case, however, we are relieved from à consideration of this question by the presumption that the wife was guilty of no fault which justified either the original desertion or its long continuance. We are of opinion especially that in the present case, and upon the present assignments of error, the defendant is not entitled to make the objection that the proper evidence of the right of the wife to an independent domicil is a judicial decree. No objection was made to the introduction of evidence of facts upon which, according to the general law as well as the law of Rhode Island, the wife became entitled, as a matter of legal right, to establish an independent domicil. The defendant below was content to rely upon the proposition that upon all the evidence the plaintiff was not a citizen of Rhode Island. No objection was made to trying the question of the relations of husband and wife collaterally. The objection that she had not established her rights by a judicial decree, and that the defendants should not be compelled to try the question of the relations of husband and wife in this action, was not made, and must be held to have been waived. The circuit court was clearly right in refusing the instruction set forth in the second assignment of error, and there was no error in the instructions set forth in the third assignment of error above quoted, either as a statement of general law or as a statement of the law of Rhode Island. The next question is whether the court erred in denying the defendant's motion that the jury be directed to find for the defendant. The plaintiff was injured by a fall due to a defect in a sidewalk. There was evidence that where a gravel walk adjoined a concrete walk the concrete projected above and across the gravel walk at a height of about 3 inches at the place where the plaintiff fell, and that the defect had existed for at least six months. This was in a thickly settled locality. The plaintiff's toe struck the edge of the concrete. causing her to fall forward on her hands and knees upon the concrete. This occurred on the morning of December 27, 1899, at about 6:15 o'clock, before sunrise, when it was still dark, and while the plaintiff was on her way to work in the mill at Watertown. We think it clear that the question whether there was a defect in the sidewalk, which the defendant, in the exercise of reasonable care, should have remedied, was properly submitted to the jury. Redford v. Woburn, 176 Mass. 520, 57 N. E. 1008; Lamb v. Worcester, 177 Mass. 82, 58 N. E. 474. The fourth and fifth assignments of error relate to the burden of proof. In accordance with the settled practice of the Federal courts, the learned judge correctly refused to grant an instruction that the burden of proving due care was on the plaintiff, and ruled that the burden was on the de- | no such question, and the error related to fendant to prove that the plaintiff was not an irrelevant topic, and was not harmful. in the exercise of due care. We find no er- The eighth and ninth assignments of error in these instructions. ror cover the refusal of the court to give instructions relative to the aggravation of an injury caused by failure to use ordinary care in securing surgical or other medical treatment, or caused by any other want of ordinary, reasonable care, and also to modi We are also of the opinion that there was no evidence in the case tending to show that the plaintiff was guilty of negligence, or that required the court to submit to the jury the question of contributory neglifications of the instructions requested. We gence. Therefore the matters covered by the sixth and seventh assignments of error are irrelevant. While the phrase, "if both parties were at fault, and the negligence of the defendant was the proximate, efficient, and prime cause of the injury, the plaintiff inight recover,” might have been misleading, had there been any proper question of contributory negligence in the case, there was are of the opinion that upon the case presented no instructions upon this subject were called for, and that the jury would not have been justified in finding any failure of ordinary care in securing surgical or other medical treatment, or want of other ordinary care in the conduct of the plaintiff. The judgment of the Circuit Court is affirmed, with interest and with costs. UNITED STATES CIRCUIT COURT OF APPEALS, SEVENTH CIRCUIT. William E. BROWN et al., Plffs. in Err., v. FIRST NATIONAL BANK OF NEWTON, 1. 2. (50 C. C. A. 602, 112 Fed. 901.) The defense that the payee of a note has released collateral without the consent of the maker is available at law, although the collateral is an equity held by the maker of the note as assignee in a Judy ment to which he was not a party. Sureties on a note are relieved from their obligation at law to the extent to which the payee has released collateral security without their consent or that of the maker. 3. Sureties on a note have a right to E have collaterals pledged for its payment applied according to the agreement, and will be released to the extent that they are applied upon other obligations of the maker upon which they are not liable. (January 7, 1902.) Underwood, 55 Ill. 123; Colebrooke, Collateral Securities, § 586f. A surety is discharged by the releasing of collateral by the creditor. Brandt, Guaranty & Suretyship, § 426; Allen v. O'Donald, 23 Fed. 573; Fielding v. Waterhouse, 8 Jones & S. 424; Lewis v. Armstrong, 80 Ga. 402, 7 S. E. 114; Clow v. Derby Coal Co. 98 Pa. 432; Colebrooke, Collateral Securities, § 96. The sureties are released if a right of subrogation to securities be absolutely defeated by the supine negligence of a creditor to site to its validity and preservation. comply with statutory requirements requi Colebrooke, Collateral Securities, § 240. If a creditor releases collaterals, this will discharge the surety. Colebrooke, Collateral Securities, § 239; Guild v. Butler, 127 Mass. 388; Wilcox v. Fairhaven Bank, 7 Allen, 272; American Bank v. Baker, 4 Met. 164; Eastman v. Foster, 8 Met. 19; Stewart v. Davis, 18 Ind. 74; Cheesebrough v. Millard, 1 Johns. Ch. 409, 7 Am. Dec. 494; Hayes v. Ward, 4 Johns. Ch. 123, 8 Am. Dec. 554; Ingalls v. ORROR to the Circuit Court of the United Morgan, 10 N. Y. 178; Chester v. Bank of States for the Northern Division of the Kingston, 16 N. Y. 336; Lewis v. Palmer, 28 Northern District of Illinois to review a N. Y. 271; Monroe County Supers. v. Otis, judgment in favor of plaintiff in an 62 N. Y. 88; New Hampshire Sav. Bank v. action brought to enforce the amount al- Colcord, 15 N. H. 119, 41 Am. Dec. 685; leged to be due on a promissory note. Re- New London Bank v. Lee, 11 Conn. 112, 27 versed. Am. Dec. 713; Belcher v. Hartford Bank, 15 Conn. 381; Pratt's Succession, 16 La. Ann. 357; Priest v. Watson, 75 Mo. 315, 42 Am. Rep. 409; Clopton v. Spratt, 52 Miss. 251; Nelson v. Munch, 28 Minn. 314, 9 N. W. 863; Springer v. Toothaker, 43 Me. 381, 69 Am. Dec. 66; Moore v. Gray, 26 Ohio St. 525; Waite v. Dennison, 51 Ill. 319; Dillon v. Russell, 5 Neb. 484; Smith v. McLeod, 38 N. C. (3 Ired. Eq.) 390; Miller v. Ord, 2 Binn. 382; Clow v. Derby Coal Co. 98 Pa. 432: Neff's Appeal, 9 Watts & S. 36; Austin V. Belknap, 54 Vt. 495; Brinton v. Gerry, 7 Ill. App. 238; Kirkpatrick v. Howk, 80 Ill. 122; Rogers v. Trustees of Schools, 46 The facts are stated in the opinion. Argued before Jenkins and Grosscup, Circuit Judges, and Bunn, District Judge. Mr. William Eugene Brown, for plaintiffs in error: It was competent to show that this judgment had been assigned as collateral se curity, even by oral testimony. Tillson v. Moulton, 23 Ill. 648; Hossack v. NOTE. As to release of sureties on bank cashier's bond by failure of bank to realize amount of defalcation from securities pledged to it by him as collateral, see, in this series, McShane v. Howard Bank (Md.) 10 L. R. A. 552. Ill. 428; Phares v. Barbour, 49 Ill. 370; | ver v. Wilkinson, 145 U. S. 205, 36 L. ed. Darst v. Bates, 95 Ill. 513; Cherry v. Mil- 676, 12 Sup. Ct. Rep. 832; Donnell v. Wycler, 7 Lea, 305. koff. 49 N. J. L. 48, 7 Atl. 672; Baker v. Briggs, 8 Pick. 122, 19 Am. Dec. 311; Carpenter v. King, 9 Met. 511, 43 Am. Dec. 405. Courts of law will in proper cases apply the rule. Kirkpatrick v. Howk, 80 Ill. 122; Rogers v. Trustees of Schools, 46 Ill. 428; People v. Jansen, 7 Johns. 332, 5 Am. Dec. 275; Chester v. Bank of Kingston, 16 N. Y. 337; Guild v. Butler, 127 Mass. 386; Baker v. Briggs, 8 Pick. 122, 19 Am. Dec. 311; Carpenter v. King, 9 Met. 511, 43 Am. Dec. 405: Horne v. Bodwell, 5 Gray, 457; Price v. Dime Sav. Bank, 124 Ill. 317, 15 N. E. 754. Where the holder of a note with personal security at the time of its execution receives other security therefor, as a mortgage on real estate, a destruction of such collateral security by the payee of the note without consent of the sureties will operate to release such sureties. Rogers v. Trustees of Schools, 46 Ill. 428; Phares v. Barbour, 49 Ill. 370; Kirkpatrick v. Howk, 80 Ill. 122; Hall v. Hoxsey, 84 Ill. 616; Price v. Dime Sav. Bank, 124 Ill. 317, 15 N. E. 754; Union Trust Co. v. Rigdon, 93 Ill. 459; Rush v. First Nat. Bank, 17 C. C. A. 627, 36 U. S. App. 248, 71 Fed. 102. It matters not who was the plaintiff in this judgment, and it matters not by whom or how his judgment was assigned in form. Rivinus v. Langford, 33 L. R. A. 250, 21 C. C. A. 581, 45 U. S. App. 79, 75 Fed. 959; Charnley v. Sibley, 20 C. C. A. 157, 34 U. S. App. 705, 73 Fed. 980; Stearns v. Marsh, 4 Denio, 227, 47 Am. Dec. 248; Belden v. Perkins, 78 Ill. 449. The making and filing of a satisfaction piece of a judgment is prima facie evidence of payment of the judgment, in absence of proof to the contrary. Freeman, Judgm. § 426 A; Neal v. Handley, 116 Ill. 418, 56 Am. Rep. 784, 6 N. E. 45. This defense is not an equitable one. Where collateral securities are converted, wasted, or sold by a creditor, he is liable in an action at law, at the suit of the debtor, for the loss thereby occasioned, and equity has no jurisdiction. Lacombe v. Forstall's Sons, 123 U. S. 562, 31 L. ed. 255, 8 Sup. Ct. Rep. 247. When a creditor obtains judgment upon a note of a third person held as collateral security, the judgment takes the place of the note, and stands as security merely for the principal debt. Jones, Pledges, § 673; Harding v. Hawkins, 141 Ill. 572, 31 N. E. 307. The assignee has full control over the judgment. He alone has power to receive payment, and payment to the plaintiff after the assignment is void, and will not release the judgment. None of the parol-evidence rules apply to this case. Parol evidence is always admissible to show that an assignment absolute in form was really intended as collateral security, and that, too, in a court of law. Jones, Pledges, §§ 82, 102, 141, 155; Leighton v. Bowen, 75 Me. 504; Hazzard v. Duke, 64 Ind. 220; Wood v. Matthews, 73 Mo. 477; Johnson v. Huston, 17 Mo. 58; Kelly v. Ferguson, 46 How. Pr. 411; Van Pelt v. Otter, 2 Sweeny, 202; Hildreth v. O'Brien, 10 Allen, 104; Burgess v. Seligman, 107 U. S. 20, 27 L. ed. 359, 2 Sup. Ct. Rep. 10; Garton v. Union City Nat. Bank, 34 Mich. 279. An assignment by a debtor to his creditor is presumed to be as collateral security. Jones, Pledges, §§ 17, 687; Wilhelm v. Schmidt, 84 Ill. 183; Brown v. Hiatt, 1 Dill. 372, Fed. Cas. No. 2,011. Mr. Blewett Lee, for defendant in error: The evidence in the case disclosed an equitable defense. A Federal court cannot in an action at law entertain an equitable defense. 7 Enc. Pl. & Pr. 801; Burnes v. Scott, 117 U. S. 582, 29 L. ed. 991, 6 Sup. Ct. Rep. 865; Gibson v. Chouteau, 13 Wall. 92, 20 L. ed. 534; Northern P. R. Co. v. Paine, 119 U. S. 561, 30 L. ed. 513, 7 Sup. Ct. Rep. 323; Scott v. Armstrong, 146 U. S. 499, 36 L. ed. 1059, 13 Sup. Ct. Rep. 148; Snyder v. Pharo, 25 Fed. 398; Wilson v. Wilson, 26 Or. 251, 38 Pac. 185. The matter is jurisdictional and cannot be waived. Mulqueen v. Schlichter Jute Cordage Co. 108 Fed. 931. At common law the rights of the assignee of a judgment are equitable only. Freeman, Judgm. 4th ed. § 421. At common law a judgment is not assignable, and the assignee gets only an equity. 2 Black, Judgm. §§ 940, 948; Hossack v. Underwood, 55 Ill. 123; Hughes v. Trahern, 64 Ill. 48; Baker v. Wood, 157 U. S. 212, 216, 39 L. ed. 677, 678, 15 Sup. Ct. Rep. 577; Nederland L. Ins. Co. v. Hall, 27 C. C. A. 390, 55 U. S. App. 598, 84 Fed. 278. Parol evidence is inadmissible in a court of law to show that an assignment absolute upon its face was for security only. 1 Jones, Mortg. 5th ed. § 282; 17 Am. & Eng. Enc. Law, pp. 454, 461; German Ins. Co. v. Gibe, 162 Ill. 251, 44 N. E. 490; Bast v. First Nat. Bank, 101 U. S. 93, 25 L. ed. 794; State ex rel. Yeoman v. Hoshaw, 98 Mo. 358, 11 S. W. 759; Godkin v. Monahan, 27 C. C. A. 410, 53 U. S. App. 604, 83 Fed. 116; Schneider v. Kirkpatrick, 80 Mo. App. 145; Sayre v. Burdick, 47 Minn. 367, 50 N. W. 245. Freeman, Judgm. § 462; Jones, Pledges, 32; Beale v. Farmers' & M. Bank, Watts, 529; Hanna v. Holton, 78 Pa. 334, 21 Am. Rep. 20; Miller v. Gettysburg Bank, 8 'Watts, 192, 34 Am. Dec. 449; Bast v. First There is no merger in equity of a mortNat. Bank, 101 U. S. 93, 25 L. ed. 794; Cul-gage to the prejudice of the mortgagee, 15 Am. & Eng. Enc. Law, pp. 327-329; Jones, Mortg. 5th ed. §§ 870, 871, 873; Case v. Fant, 3 C. C. A. 418, 10 U. S. App. 415, 53 Fed. 41; Lowman v. Lowman, 118 Ill. 582, 9 N. E. 245; Coryell v. Klehm, 157 Ill. 462, 41 N. E. 864; 1 Beach, Modern Eq. Jur. $ 450; Rand v. Ft. Scott, W. & W. R. Co. 50 Kan. 119, 31 Pac. 683; Factors' & T. Ins. Co. v. Murphy, 111 U. S. 738, 28 L. ed. 582, 4 Sup. Ct. Rep. 679; United States v. Stowell, 133 U. S. 1, 33 L. ed. 555, 10 Sup. Ct. Rep. 244. The so-called release of the Hodgson judgment was of no effect. An attorney at law has, by virtue of his general retainer, no authority to satisfy a judgment without payment of the full amount in money. Freeman, Judgm. 4th ed. § 463; Rounsaville v. Hazen, 33 Kan. 71, 5 Pac. 422; Trumbull v. Nicholson, 27 Ill. 149; Abbe v. Rood, 6 McLean, 106, Fed. Cas. No. 6. Where securities are surrendered by reasonable compromise in good faith, the sureties are not discharged. In any case the discharge is only pro tanto. Dunn v. Parsons, 40 Hun, 77; Brinton v. Gerry, 7 Ill. App. 238; Phares v. Barbour, 49 I. 370; Allen v. O'Donald, 23 Fed. 573; Bedwell v. Gephardt, 67 Iowa, 44, 24 N. W. 585; 2 Brandt, Guaranty & Suretyship, 2d ed. p. 624, note. The where a deed is taken from the mortgagor | 1891, for $2,500, against one Hodgson and to obviate foreclosure. wife to the plaintiff, as collateral security to the note in suit; that prior to this time one G. W. Rogers had owned this note and mortgage, and had commenced a suit thereon in the district court of Harvey county, Kansas, to foreclose the same, and afterwards had sold the note and mortgage to William E. Brown, who had assigned the same to the plaintiff as collateral security for the note in suit; that judgment was afterwards rendered on the said note and mortgage in the case of Rogers against Hodgson and wife, which was a personal judgment against them for $3,912.50, as well as a foreclosure against the property described in the mortgage; that afterwards Rogers assigned said judgment to Brown by a separate instrument of assignment, and that Brown by another instrument of assignment assigned the same to the bank as collateral security for his note for which the note in suit is a renewal, and that Rogers assigned on the judgment docket the said judgment direct to the bank by an assignment absolute in form, but really for the purpose of passing title to the bank, that the same might be held as collateral security for the note of Brown; and afterwards the foreclosed property was sold at sheriff's sale, and the bank bid it in for $500 under an agreement with Brown that the bank should hold the property as collateral security, as it held the balance of the judgment. defendants also claimed that, without the knowledge or consent of any of the defendants, the bank released from the lien of the judgment about $20,000 worth of real estate in Harvey county, Kansas, which was free and clear of all encumbrances except said judgment; that this release was made by the bank on the 14th of April, 1893, and that afterwards, on the 13th of June, 1898, the bank released the balance of the judgment in full, and that the judgment amounted to about two or three times the amount of the note sued upon; that the judgment debtors are solvent, and had ample property to pay this judgment, and that thereby the security has been lost to the said Brown, and that the sureties were deprived of the benefit of the collateral, and that thereby the obligors on the note had been released and discharged. This defense is set up also by another plea substantially in the same manner, and the whole contention in the case relates to this defense. There was a jury trial, and the plaintiff on the trial introduced the note in evidence, and rested. There was much time occupied by the defendant in putting in testimony to substantiate the allegations of his several pleas. There was also a written stipulation as to much evidence which was introduced by the defendant, and there is no contention but that the evidence introduced tended to prove the allegations of the defendants' defense in regard to the releasing of the collateral securities without the consent of Brown. Where the interests involved are so complicated that a court of law cannot afford adequate relief, the defense of a discharge of the surety by the release of the securities will not be entertained. Ames, Cases on Suretyship, 153, 154, notes; Samuell v. Howarth, 3 Meriv. 278; Rogers v. Trustecs of Schools, 46 Ill. 428; Seaman v. Bisbee, 163 Ill. 91, 45 N. E. 208. The remedy of the defendants was in equity. 18 Am. & Eng. Enc. Law, p. 676; Hicks v. National L. Ins. Co. 9 C. C. A. 215, 20 U. S. App. 410, 60 Fed. 690; Baker v. Wood, 157 U. S. 212, 39 L. ed. 677, 15 Sup. Ct. Rep. 577. Bunn, District Judge, delivered the opinion of the court: This action was brought by the First National Bank of Newton, Kansas, against William E. Brown, Cora E. Brown, and Thomas J. Norton upon a promissory note for the sum of $3,366.75, upon which was indorsed as credits $125 July 9, 1898, and $215 on the same date, being proceeds of two different claims. The note was signed by the three defendants. The defendants pleaded that William E. Brown was the principal upon the note, and the other two defendants were sureties, and that the plaintiff was cognizant of this relation. Among other defenses, it was claimed that the note sued upon was a renewal of a series of notes given by the defendants to the plaintiff, and running back several years; that defendant Brown had turned over a note and mortgage about November, Before the defendants had got through with their testimony or rested their case, |