After the pleadings had been filed in this action, and when the same came on for trial, the parties submitted to the court an agreed statement of facts. It was agreed that if on these facts the court should be of opinion that plaintiff is entitled to recover, judgment should be rendered that plaintiff recover of the defendant the sum of $1,681.50' and the costs of the action, and that if the court should be of opinion that plaintiff is not entitled to recover, judgment should be rendered, dismissing the action. The court was of opinion that on the facts agreed, plaintiff is not entitled to recover, and thereupon rendered judgment dismissing the action. In this there was error:
By his agreement that the action should be submitted to the court for judgment on the facts agreed, the defendant waived all defenses set out in his answer. It was agreed that plaintiff had sustained a loss in the sum of $1,681.50, by reason and in consequence of its execution of the bond as surety for the defendant. Under the terms of his covenant contained in his written application to the plaintiff, the defendant is liable to the plaintiff for the sum of $1,681.50. Judgment should have been rendered that plaintiff recover, of the defendant the sum of $1,681.50, and the costs of the action.
This is not an action on the judgment rendered by the United States District Court for the Western District of South Carolina. The question *241discussed in the brief filed for the defendant on his appeal to this Court is not presented on the record. In Brower v. Watson, 146 Tenn., 626, 244 S. E., 362, 26 A. L. R., 991, it was held that the courts of one state-will not take jurisdiction of an action by a citizen of another state for injury caused to him by breach of the bond of a sheriff, given under the laws of such other state, by an act committed there, when the bond is payable to the state, and the action is to be brought in its name. This principle is sound, but it has no application in the instant case. The judgment is
Eeversed.
Stacy, C. J., not sitting.