United States v. Price (50 U.S. 83)/Dissent Woodbury

by Levi Woodbury

United States Supreme Court

50 U.S. 83

United States  v.  Price

Mr. Justice WOODBURY.

The leading question in this case is, whether, after the recovery of a joint judgment on a joint and several bond, and the death of one of the obligors happening, who was a surety, a court of equity will sustain a remedy against his property in the lands of his executor.

The safety of the government, having such numerous sureties on official bonds, depends so much on their liability in all proper cases, that the technical discharge of them objections not reaching the merits is a great and growing evil. The public, too, in the individual dealings of many on the strength of the security furnished by others than the principal debtor, have a deep interest in preventing their discharge without a full satisfaction of the debt.

I must be excused, then, for stating some of the reasons and authorities why it is not in my power to concur in the judgment just pronounced, discharging the executor of the surety to the government, without making any payment whatever of the debt. It is conceded by me, that, in case of a debt entirely joint, if one of the obligors die, it is a rule in a court of law, that 'his executor is totally discharged, and the survivor or survivors only chargeable.' 2 Howard, 78; 2 Sumner, 368; Bac. Abr., Obligations, D. 3; Erwin v. Dundas, 4 Howard, 78; 2 Wharton, 361, in Kennedy v. Carpenter, and cases cited there; 2 Harr. & Gill, 313; Rogers v. Danvers, 1 Mod. 165; 1 Freeman, 127. This, however, is the rule at law, and is not, in all cases, the same in equity. Even at law, the objection is purely technical, and arises only on account of the want of a remedy there against the estate of the deceased, and not because the debt itself has been satisfied; and so strong is the justice of still enforcing it at law without a resort to equity, that the statutes of many States have expressly made provision for collecting a debt against the estate of all joint debtors when it has never yet been paid by either. See United States v. Cushman, 2 Sumner, 312, and 2 Gill & Johns. 316. But in time, without any statute, courts of chancery gave relief in this class of joint contracts by allowing a remedy in certain instances; and though this was at first refused (2 Brown, Ch. 276), and was granted at last with some hesitancy, it has become the ordinary practice to allow it, when the original indebtedness or liability, though now in form joint, was on any account, or in any just view, general no less than joint.

Indeed, without relying on this distinction, the Lord Chancellor in Primrose v. Bromley, 1 Atkyns, 90, states a case where he decreed such relief, to a certain extent, on a joint bond against the estate of the deceased. He observes,-'There was a case which I determined in this court, where there were two persons jointly bound in a bond, one of the obligors died; and to be sure, at law, it might have been put in suit against the survivor, but as I thought it extremely hard, I decreed the representative of the co-obligor should be charged pari passu with the surviving obligor in the payment of the bond.'

But it seems uniform to grant such relief by a new remedy in chancery against the estate of the deceased, whenever, as here, the original contract was several as well as joint. Towers v. Moor, 2 Vern. 99; 1 Peters, 16, and cases post; Rogers v. Danvers, 1 Mod. 165; Burr. 1190; Williams on Executors, 809, 811; 1 Freeman, 127. I doubt whether a single case to the contrary exists in either the American or the English books.

One ground of relief, where the original contract was several no less than joint, is the admission in the undertaking, that each signer and his estate should be separately liable for the whole to the obligee, so far as regards him, and hence raising in equity a liability to do this separately by his property after death, because the difficulty in any remedy to enforce it at law is merely technical, and the equity or conscience in paying an unsatisfied promise and debt stands still unimpaired. See further cases. United States v. Cushman, 2 Sumner, 427; 1 Merivale, 563; Sumner v. Powell, 2 Merivale, 30; Devaynes v. Noble, 2 Russ. & Mylne, 506. The chief difficulty in this class of cases is to settle whether the contract was several as well as joint. It is the language of the contract, when several, which is the most decisive test as to its severalty. Sir Wm. Grant says, 'When the obligation exists only by virtue of the covenant, its extent can be measured only by the words in which it is conceived.' 2 Meriv. 36. A similar reliance on the words used being joint only, and not several, appears in Harrison v. Field, 2 Wash. 141.

The court observes, too, in Sumner v. Powell, 1 Turner & Russell, 425, 'There can be no doubt in the world, that, if this covenant had been a joint and several covenant, it would have done, and therefore any evil which might otherwise arise out of the case may be avoided by the addition of a single word.' In Towers v. Moor, 2 Vernon, 99, it is said, 'Where two are jointly bound. and one dies, you must sue the survivor, and cannot maintain an action against the executor or administrator of him that is dead; but if bound jointly and severally, it is otherwise.'

So in Lechmere v. Fletcher, 1 Crompton & Meeson, 629, there had been a contract wholly joint, and a judgment on it jointly; but one of the promisors made also a several agreement to pay the amount, not as a substitute, but as an additional undertaking; and a remedy in equity against the representative of this last promisor was sustained on that separate agreement.

But without pursuing this point further, it is placed beyond doubt, by the numerous cases hereafter cited, that courts of equity will give relief, though the contract produced is on its face joint, if it be proved that it was originally agreed to be joint and several, and by mistake or ignorance was written joint alone. It becomes necessary, then, to consider next the only pretence urged for taking this case out of the general rule, namely, that a joint judgment had been subsequently recovered here against all the obligors, and that the deceased was a surety.

1st. It has been much pressed here that the remedy in this case is now at law only on the joint judgment, and hence should not be enforced severally in equity. But it is conceded that the original liability was joint and several; and it is laid down in some books, that a several action at law could probably have been sustained here on the original demand, after the joint judgment.

It has been adjudged by this court, that on a joint and several promissory note an action and judgment against the signers severally are no bar to a joint action against them. Sheehy v. Mandeville, 6 Cranch, 253; 6 Coke, 44; 13 Mass. 148. And though a joint suit on a joint and several promise is a bar to another joint action on it, (Higgens's case, 6 Coke, 45; Gilman v. Rives, 10 Pet. 298,) it is thought by Judge Story, after much deliberation and research, to be no bar to a several suit and judgment afterwards on the original joint and several promise. U. States v. Cushman, 2 Sumner, 312, semb., and 427; 1 Story's Eq. Jur. § 164 and note, and $676; 7 Serg. & Rawle, 355; Lechmere v. Fletcher, 1 Crompt. & Mees. 623. Sed cited contra, 13 Serg. & Rawle, 288; 2 Watts, 204; 7 Serg. & Rawle, 354; 2 Serg. & Rawle, 280; 9 Watts & Serg. 88; U. States v. Thompson, 1 Gilpin, 622; 1 Peters, 16; 2 Wash. 136.

On an examination of the opposing cases which have been cited, it will be seen that the weight of authority is against the technical merger or bar set up here by the joint judgment.

The case cited from Gilpin against this is one at law; and the point in controversy was merely the validity of a release to one co-obligor, after a judgment against another, to discharge the latter also.

The case of Williams et al. v. McFall, 2 Serg. & R. 280-282, is only sustaining a judgment separately against one co-obligor, who confessed it.

The case in 1 Peters, 16, merely held one obligee to abide by the selection he had made of one kind of security over another, given by a single obligor.

The case in 2 Washington, 136, was one of a joint contract originally, no less than afterwards.

The case of Reed v. Garvin's Executors, 7 Serg. & R. 354, held, to be sure, that one joint judgment was a bar to another at law against the executors of one of the obligors deceased. Yet, at the same time, it maintained that a remedy existed against the real property, if not the personal, of the deceased, and at law, in Pennsylvania, wherever it existed in England in chancery (pp. 356, 357, 365). Duncan, J., at this last page, says, what strongly applies here, though after a joint judgment on the bond against all the obligors,-'That in some way the defendants, the executors of the deceased obligor, should be reached, or the lands of the testator, which are assets in his hands,' and charged with the payment of judgment debts, 'we all agree, though we differ in the mode.'

The case of Downey v. The Farmers and Mechanics' Bank, 13 Serg. & R. 288, is the only case cited which holds that after an action at law against two co-obligors, though judgment be obtained only against one, another suit separately will not lie against the other. But this was deemed by the court as illiberal and technical in principle, and applied only to another proceeding at law against one.

There is another case-Ex parte Rowlandson, 3 P. Wms. 406 which has not been cited, but holds, as a collateral point or illustration, that a suit against all obligors instituted on a joint and several contract at law may, while pending, be pleaded in abatement to a several suit on the same contract, and vice vers . No decided case of this kind is cited, however, and this is not in all respects in point.

Nor is it in point that a joint judgment against two, apparently on a promise wholly joint, is a bar to a subsequent action at law against one of them, without averring the death or discharge of the other, (see Gilman v. Rives, 10 Pet. 298,) because the present promise was not joint alone.

In no instance in this class of cases has it ever been held necessary, in order to sustain this proceeding in equity, that a judgment on the original indebtedness should be severally recovered first. See post. 1 Meriv. 539. Or that, if joint, it should be still open to a several remedy at law.

Thus stands this point on the precedents. It will be apparent, therefore, that when this is a mere technical objection as to a remedy, and not any defence against the debt as still due, and is a very doubtful one at law on the present facts, it ought not to prevail a moment in a court of equity.

It is not to be overlooked that our present inquiries are not at law, but wholly in equity, and are to be governed by equitable, and not strict legal or technical considerations. If, then, the joint judgment had been more clearly a technical merger of the joint and several debt here, and no several action would afterwards lie at law on the note, would it not be just and right on principle to grant this separate aid in chancery? So strong is this principle, we have already seen, that sometimes it is provided by express legislation that at law a suit may still be prosecuted against the surviving debtor and the executor of the deceased debtor together on a joint obligation, or, if existing in a judgment, be enforced against the property of either. (See Sumner, and Harris & Gill, before cited.) The justice of such a remedy, the debt against both being conceded still to exist unpaid, seems to be so apparent, as to commend its sanction and success in a court of equity without the aid of any statutory provision. 1 Story's Eq. Jur. § 164.

One reason why the assets in the hands of the executor are charged in any of these cases is, that he is a trustee for all which can equitably be charged on them. 2 Williams on Executors, 1584. But was not the estate of the deceased charged equitably with a joint judgment against him on a joint and several promise, as fully as by that promise without any judgment?

One prominent reason assigned against this relief here, under all the circumstances of the case, has been, that, by the joint judgment, there has been a release or quasi release of each obligor. But this cannot mean a release of the debt, or the joint judgment itself could not be enforced at all in any way, nor against either. So far from the debt itself being released, it is fixed and proved by a solemn record. Notwithstanding, too, the subsequent death of one, the debt still stands. He has never paid it, and his property, in every conscientious view, should also stand as liable as ever to discharge it, the obstacle at law reaching merely the remedy.

The obligation on the estate to pay in foro conscientice being strong as ever, the moral duty on the representative of the deceased is still imperative, and is more to be weighed and enforced in chancery than elsewhere, that being the tribunal peculiarly designed to relieve against much of the strictness and technicality prevailing elsewhere.

It has been urged, further, that, if the liability is enforced here in chancery, it will be without any equity existing between the obligors. But that is not the question; it is, whether there was not an equity between the obligors and the obligee,-one growing out of an absolute promise, an ample consideration both implied and hereafter shown, and in this case a judgment recovered. An executor is charged sometimes where a judgment has been recovered against the deceased, when he would not be if there had been no such judgment, as the cause of action at times does not survive. Whiteacres v. Onsley, Dyer, 322, a; 2 Williams on Executors, 1366.

Again, it is urged that, the joint judgment being a merger of the joint and several contract, and a several remedy at law afterwards not allowed, there is no ground in equity, because none at law exists to charge the several estate of one deceased. But this proves too much. The principle in all these cases is not to discharge on in equity, if not liable to a suit severally at law, but almost the reverse; because in all cases, except where the contract on its face and in terms was several, no several suit at law can be maintained. But still a proceeding is frequently sustained in equity, and the circumstance of there being no relief at law is one reason for rather than against it. Thus is it with a partnership debt, a common joint debt on a joint loan and bond, and a joint contract or bond not reformed, but which should have been written several. In none of these could a several suit at law lie when the co-obligor died, and yet in all a court of chancery will relieve. Those in each class have been or will hereafter be explained, and need not be repeated.

Again, on equitable grounds, it seems obvious that after a joint judgment against joint and several obligors, which binds still the person and property of either as much as if the judgment had been several, the property of each should continue liable as much as if the contract had been never sued, or had been sued severally. And a fortiori should this be the case in equity, where judgments form a lien on the property of all the respondents, and a joint judgment, as here, bound the estate of the deceased co-obligor. I am not aware of any case like this, even if it had been entirely joint in form, that equity would not pursue such a lien against all.

Again, supposing that a several action would not lie here on the bond against one co-obligor after a joint judgment, though the promise was joint and several, rather than joint or several, or joint alone, it is far from decisive against this application in equity. There the court often looks to the circumstance whether the original contract of indebtedness was joint alone, or joint and several, and if the latter will aid a recovery.

So paramount is this test, that where the written contract reads joint only, equity will on request reform it, if it was originally agreed to be several, and by mistake or fraud was not so written; and after reforming it, chancery will enforce it against the estate of one co-obligor deceased, as it was supposed to stand originally. 1 Story's Eq. Jur. § 164.

Other cases seem to imply that an original indebtedness, though the bond be only joint, and no evidence offered of an agreement that it should be several also, will be regarded as several, and enforced accordingly, if it was for an ordinary loan, where all are partners or where all were benefited. See post; 1 Story's Eq. Jur. §§ 162, 676; 2 Russ. 196; 2 Meriv. 36.

A fortiori will relief, then, be proper, if it was, as here, originally written several, or even if it was agreed to be so. 2 Ves. sen. 101, 106; Ex parte Symonds, 1 Cox, Ch. 200. Indeed, the justice of this has seemed so strong, that some legislatures, as in Maryland, have gone so far as expressly to enact that the same remedies shall be sustained on joint bonds against estates of one deceased, as on those joint and several. See Act of 1811, ch. 161, in 2 Gill & Johns. 316; 7 Harr. & Johns. 466.

That I am right as to the practice in equity to look to the original contract, and not merely the face of the present debt, may be seem in the cases of partners and of ordinary joint contracts, where it is allowed to be proved that originally, in their essence, though not in form, they were several no less than joint, and after that to grant relief. See the illustration in Hunt v. Rousmaniere's Adm., 1 Peters, 16, and cases hereafter cited.

It is a peculiar excellence in chancery, on many occasions, that it goes behind writings, and even sealed instruments and judgments, to ascertain how the original transaction stood, and what were its true obligations, in order to enforce them. The joint judgment here did not create the original liability to pay, and hence equity can as properly go back of it to see what the original liability was, and if several no less than joint; as it goes back of a joint bond when 'it was not the bond which first created the liability to pay.' 2 Williams on Executors, 1370.

However, then, it may be at law as to the several liability of a joint and several contractor, after a joint judgment has been recovered, it seems that the principle and precedents in equity do not rest on that, but hold the estate of one after his death responsible, if the original obligation was several as well as joint. Here the promise and duties were at first not only several, and have never been satisfied, and, except technically at law in respect to the remedy, have never been extinguished; but to the original equities have been superadded a lien on his estate, by the joint judgment recovered before his death, and which it is equitable to have enforced after his death, on this no less than several other occasions.

There are two classes of cases which go to sustain further this view, where the contract is on its face joint, and not in form several as well as joint, and is not proved to have been originally agreed to be written several as well as joint; and yet where relief can be had, looking to the original severalty of the transaction, rather than to the mere technical law on it as now standing. One is where the obligors acted as partners in business, and there, though the promise is in form only joint, a court of equity will charge the estate of the deceased partner in a bill against the executor or administrator. 1 Story's Eq. Jur. §§ 676, 163; Thomas's case, 3 Ves. 399; 1 Meriv. 539; Devaynes v. Noble, 2 Russ. & Mylne, 495, 506; Bishop v. Church, 2 Ves. sen. 101, 371. This is also said to proceed on general principles of equity rather than on the lex mercatoria. 1 Meriv. 539, 562; 2 Younge & Col. 562. It goes back for a test to the original consideration and relation of the parties. So fully, however, even there, is the relief granted on the ground or theory of a several obligation or duty originally, though not so expressed in the writing, that the Master of the Rolls declares, in Henderson v. Wilkinson (1 Mylne & Keen, 588),-'All the authorities establish, that, in the consideration of a court of equity, a partnership debt is several as well as joint.'

The other class is, that in a joint loan or other transaction, if the obligation taken be in terms joint only, and not agreed in the writing or otherwise to be several, equity will still enforce it in many cases against the estate of either alone. 2 Meriv. 37; Thompson v. Jackson, 2 Younge & Col. 553; Cowell v. Sikes, 2 Russ. 196; Ex parte Kendall, 17 Ves. 525, note; Waters v. Riley, 2 Har. & Gill, 310-313; 6 Serg. & R. 266; Primrose v. Bromley, 1 Atk. 89; Kennedy v. Carpenter, 2 Whart. 364, 365; 1 Mylne & Keen, 582; Simpson v. Vaughan, 2 Atk. 32; Bishop v. Church, 2 Ves. sen. 101. Here, also, the idea of a several obligation originally is still looked to, and is sought outside of or behind the joint instrument, by examining the transaction as it took place at first.

Some rest the remedy here on the presumped receipt originally by each of a part of the loan or benefit; and others or the legal presumption, not the proved fact, that the contract itself was by mistake originally not written several as well as joint, and thus reforming it and deciding on it as if reformed and made several. See cases before cited, and Hunt v. Rousmaniere's Adm., 1 Peters, 16. And others put it on the probable legal intent, that all should be severally held responsible. 6 Serg. & Rawle, 261; 9 Ves. 118. And this intent is the presumption in all mercantile transactions,-more obviously from usage there,-but is not confined to them. 1 Russ. 191; 2 Younge & Col. 562; Rawstone v. Parr, 3 Russ. 427; Ex parte Kendall, 17 Ves. 528, note. So strong is this equity regarded against the estate of one deceased, in either of these classes, that chancery will allow it to be pursued without a resort first to the survivor. Wilkinson v. Henderson, 1 Mylne & Keen, 588; Sleech's case, 1 Meriv. 539, and 3 Meriv. 593.

The reliance just referred to, on legal presumptions and probable intents originally, in order to find an original severalty in the case to help furnish or justify a remedy in equity, discloses another and the last ground I shall consider in favor of such a remedy here. It is this.

If such presumptions will be made in point of law, as to the intent, and an error in the writing, so as to raise a several engagement originally, to charge the estate of one deceased, the reason for them here is much stronger, as here the original contract was expressed on its face to be several. We are not compelled to resort to mere constructions and inferences to show it to be several. And if equity will in these cases overcome the technical objection at law which prevents a proceeding there against the estate of one deceased obligor, when the contract is on its face joint, so may it equally well overcome the technical objection at law, when the judgment is on its face joint.

Indeed, as before suggested, the equities in favor of this redress in all cases of joint contracts, and independent of statutory provision, are nearly as strong as in those joint and several,-and quite as strong in case of joint judgments, as these last generally constitute an actual lien on the estate of each obligor.

2d. No ground remains for claiming an exemption of the estate of Archer from this liability in equity, unless it be that he was a surety in the bond. But if a surety promise severally as well as jointly, he seems as liable in equity on account of that written and express promise as a principal would be. And it is on that several promise he is here chargeable in the first instance.

If it was necessary to show some original consideration, in connection with the surety in such matters, the signers of a joint and several bond are as to the obligee usually to be regarded as all principals. 2 Sumner, 427; 6 Johns. Ch. 309; Boddam's case, 9 Ves. 465; 1 Story's Eq. Jur. § 496.

It has been adjudged by this court, that the consideration to charge the principal is good to charge the surety. Thus, in The United States v. Linn et al., 15 Peters, 290, it is said,-'If Linn received a sufficient consideration to uphold the promise on his part, it was sufficient to bind the sureties. There was no necessity for any consideration passing directly between the plaintiffs and the sureties. It was one entire and original transaction, and the consideration which supported the contract of Linn supported that of his sureties.' (p. 314.)

Beside this, unless the obligee injures them by a new stipulation for further delay with the principal, which is not attempted to be proved here, and when here the delay benefited the surety alone, the principal being insolvent, then it will be seen that other good reasons usually exist for him to consider them as principals, and as promising for a good and valuable consideration to pay the sum named in the bond, and thus to raise a strong equity against them. Such a consideration, when they are liable by a sealed instrument, is in law always presumed or implied. 6 Johns. Ch. 302; 1 Vernon, 427; 1 Ves. sen. 514; 15 Peters, 291.

It is the usage, also, for sureties to be previously indemnified by a pledge of actual property of some kind, or to receive in money in advance two or more per cent. for their guarantee. It is to be recollected, also, that here the imported goods were, in consequence of their promise, allowed to be sold in this country by the owner with no other payment of duties, and thus a most important pecuniary benefit conferred on their friend for their promise as sureties.

One of Lord Bacon's proposed improvements in chancery was to treat sureties as justice and the law required, and their own conduct warranted; they, being anxious to obtain favors for friends or themselves by their promises, should therefore be made equally anxious to fulfil those promises. See 6 Johns. Ch. 309, a like view. The surety is also often the most responsible signer, and without whom the credit would not generally have been given.

An idea seems to have been entertained here, that chancery will do nothing to charge a surety which cannot be done at law, or when he is technically exonerated at law. But this is an error. It will often extend like relief against them as fully as against principals. Thus, passing by the cases, that a surety will still be made liable in equity though the bond is lost, as this may be done at law, (Skip v. Huey et al., 3 Atk. 93; 6 Johns. Ch. 307; 1 Ch. Cases, 77; Boddam's case, 9 Ves. 464; Equity Cases Abr. 93; 2 Wash. Rep. 140,) yet, in chancery, a contract will be reformed against a surety as well as a principal, where it is proved clearly that his name was by mistake omitted in the body of the instrument, though this will not be done at law. (Crosby v. Middleton, Prec. in Ch. 309.) So where, by mistake, the bond runs to a wrong person. (Wiser v. Blachly, 1 Johns. Ch. 607.) There are several cases, too, where in equity, but not at law, a bond only joint on its face will be reformed against a surety, and made several also, if it was proved to be originally agreed to be several. 1 Story's Equity, § 164, and cases there; see cases before cited, and 3 Russell, 424, 539; Weaver v. Shryock, 6 Serg. & R. 262-265. And to go to the full extent of the present case, it has been deliberately settled, that relief in equity to charge the estate of a deceased surety will be given as fully as against the principal, when the bond is on its face expressed to be joint and several. 6 Johns. Ch. 309; Rawstone v. Parr, 3 Russell, 427 and 539, semb.; Wiser v. Blachly, 4 Johns. Ch. 609; Prec. in Ch. 309; United States v. Cushman, 2 Sumner, 427.

In this class of cases, also, the relief is made to rest on the express form of the bond or contract being several as well as joint, and not on any joint benefit or partnership.

These last are distinct and different grounds to charge either principals or sureties, when contracts are on the face of them joint. See Pitman, Prin. and Sur. 91, note 1. So in Rawstone v. Parr, 3 Russell, 427, and 539, S.C.., it was held that, though the present contract appeared to be only joint, if it was agreed originally to be joint and several, as it was in truth here, a court of equity would aid a recovery against the executor even of a surety. Prec. in Ch. 309; 1 Story's Equity, § 164; 1 Johns. Ch. 609. Sed cited contra, Waters v. Riley, 2 Harris & Gill, 310; 6 Serg. & Rawle, 246, semb.; Kennedy v. Carpenter, 2 Wharton, 361. But, as already shown, these last were all cases of joint contracts, and not agreed to be several also; and cases where, likewise, no consideration was supposed to exist affecting the surety.

In 6 Serg. & Rawle, 266, the court admit that cases may exist where the estate of a co-surety may be charged, and one of them is where it was originally agreed the bond should be several (p. 264). We have already cited a number of others to that effect, and consider this an authority for our proposition.

The case of Harrison's Executors v. Field's Executors, 2 Wash. 136, is often cited against the position I have taken. But it was confessedly a joint bond, and there was no evidence of an original agreement to have it several (p. 138). And Judge Roane (p. 139) makes the same admission, that cases may exist where the estate of a co-surety is liable.

All the doctrines in Pitman on Principal and Surety, 90 and 91, supposed to differ from this position, are cases where the written contract is joint, and not joint and several.

Obscurity arises is some of the cases amidst these distinctions, from their subtilty and variety, and this tends to mislead unless cautious discrimination is made. This, and the collision between a few of the cases in the books, sometimes spring from the circumstance of not adverting to the ground, that all the signers are principals as to the obligee; and that sureties are as to him to be made liable, as if principals. See this error in Waters v. Riley, 2 Harris & Gill, 310. And from not discriminating between cases where the written obligation was only joint, and where it was both joint and several. 3 Russell, 541. So, from not observing that the surety is estopped as to the receipt of a consideration in a sealed instrument, and more especially, as here, after a judgment against him and the principal.

Another cause of some confusion and mistake in some of the cases is the treating of them as if still at law, and on strict legal principles, rather than in equity and on equitable grounds.

It is another source of error that several cases rest on more than one ground. Thus, in Primrose v. Bromley, 1 Atk. 90, the obligation was several as well as joint, and a benefit or consideration extending to the co-obligor deceased. So in Simpson v. Vaughan's Executors, 2 Atk. 33, the court first reformed the contract, being a mercantile loan, so as to regard it as several no less than joint, and a full consideration to the deceased was apparent.

Here one ground exists, which is sufficient alone, namely, a written obligation several as well as joint; though, were it necessary to show a consideration also, reaching the surety, enough to raise a legal and strong presumption of one is not difficult to be pointed out, as before done, and explained.

In conclusion it may be useful, as a test of the real equity of the principle adopted by the court in this case, to examine for a moment and discriminate what is its character or extent. It is this. An original obligation, joint and several, after the death of one obligor, who was a surety, may equitably be enforced against his estate, if not sued at all, but cannot be equitably enforced against it if sued jointly, and the liability of all rendered more certain, and a lien against the estates of all fixed by the judgment recovered.

Again, if an obligee sues each obligor separately, on a joint and several bond, before the death of either, it holds him entitled to relief against the estate of the deceased; but if he sues all together, he is not equitably to be relieved. In both cases, the original contract was the same in form and substance, the consideration the same, the liens the same; and as to the deceased, the same in amount after, as well as before, judgment; and in both cases the debt itself is still unpaid and still unreleased, and no remedy open at law against the estate. Yet it seems, in an equitable view,-in a court whose duty and business it is generally to adopt an enlarged, liberal, and just policy, and to aid against the strictness and technicalities of law,-one of these cases is to be deemed entitled to its beneficent interference, but the other is not.

Again, as a consequence of this doctrine, all joint obligors will of course hereafter be burdened with much increased cost, instead of being aided by any principle in their favor really settled by the court in this judgment. Because all the ameliorating principle settled here is, that, if each obligee is sued severally on a joint and several obligation, the obligor is entitled to the aid of a court of equity against the estate of one deceased; but if he brings only one action, and makes but one bill of cost against all of them, he behaves so as to be entitled to no equitable relief. Certainly this looks like a new attitude or version of what in a court of equity should be considered equitable; and it is likely to prove much more beneficial to the profession, than to the parties concerned or the public. Whatever technical differences as to remedies may be created at law by the forms of judgments, it will be difficult in equity, and applying equitable principles, as in the present case, to discriminate against the present case on the merits and on grounds of substantial justice.

The plaintiffs, therefore, seem to me entitled to recover, out of the estate of the deceased, the balance which is due.