
    SUPREME COURT.
    Reuben D. Hulbert agt. James Ferguson and Margaret Bonner, executors of Samuel Brown, deceased, impleaded with James Ferguson and Cornelius L. Sackett.
    The rale is well settled, that at lain, the representatives of a deceased joint debtor are not liable upon the joint obligation.
    And equity will interpose in such case only upon proof or presumption that the note or obligation was made joint by mistake, when it should have been several, and that such a presumption will arise only where the deceased, whose representatives are sought to be charged, was beneficially interested in the incurring of the obligation; never where he is a mere srnety.
    
    Where the complaint in such action does not allege that there was any mistake in giving the joint note sued on, and that it appears from the complaint, that the deceased was a mere surety and not beneficially interested in the credit given upon the note, the complaint, on demurrer, is fatally defective.
    
      Seneca Special Term, May, 1870.
    Demurrer to complaint.
    The complaint alleged that Ferguson made Ms note for $2,000 and procured it to be indorsed by Bonner & Sackett, and that Ferguson “then and there in consideration of the sum of $2,000, then and there loaned and advanced to him by the plaintiff, delivered said note to the plaintiff, who thereupon, became the owner and holder thereof, and is still the owner and holder of the indebtedness ^represented thereby, namely, the said sum of $2,000 loaned and advanced to said Ferguson, at the time aforesaid, and as aforesaid.” That before maturity, this note was given up to Ferguson by plaintiff, in consideration of Ferguson’s giving plaintiff another note for same amount at ninety days, indorsed by Bonner & Sackett. That before the maturity of this last note plaintiff informed Ferguson & Bonner “ that the same must be paid when due, as the plaintiff did not want to have the trouble of watching indorsed notes in order to have them protested. That thereupon, Ferguson & Brown requested plaintiff to take a joint note to be executed by them and Sackett at sixty days. That Bonner on another occasion, in the absence of Ferguson, and before the last mentioned indorsed note became due, urged the plaintiff to accept a new joint note; that he wanted this done on his own account; that the note to be thus given, would be better than the one plaintiff had, as it would be his (Bonner’s) note as well as Ferguson’s.” That plaintiff finally yielded to the request of Bonner and Ferguson, and consented to take a new joint note. That in a day or two thereafter, Ferguson, Bonner and Sackett duly made and executed their joint promissory note, dated, &c., whereby they promised to pay, &c., and then and there before the said last mentioned (indorsed) note became due, delivered the said joint note to plaintiff, in exchange for said last mentioned (indorsed) note, which was then delivered up to them. That Bonner died May 28, 1866, and that Ferguson and Sackett are insolvent.
    The executors of Bonner demur, for that the complaint does not state a cause of action.
    S. R. Ten Eyck, for the plaintiff.
    In equity, creditors have a remedy against representatives of a deceased copartner, if the survivor is insolvent. (Hammersly agt. Lambert, 2 Johns. Ch., 508; Wilder agt. Keeler, 3 Paige, 166, 172.)
    The joinder of parties is right, and the complaint sufficient. (Butts agt. Genung, 5 Paige, 254; Lawrence agt. Trustees, &c., 2 Denio, 577 ; Parker agt. Jackson, 16 Barb., 34, 44; Voorhees agt. Childs, 17 N. Y., 354; Yorks agt. Peck, 14 Barb., 644; Bloodgood agt. Bruen, 4 Seld., 362.)
    The executors are estopped from denying that it was Bonner’s note. (Brookman agt. Metcalf 4 Robts., 568; 34 How., 429; Manuf’rs’ and Traders’ Bank agt. Hazard, 30 N. Y., 226 ; Jones agt. Howell, 3 Robts., 438; Horton agt. Davis, 26 N. Y., 495; 2 Parson’s on Contracts, 340.)
    The rule that equity will not interfere against a mere surety, to make the obligation several, as well as joint, has no application. (Wiser agt. Blachly, 1 Johns. Ch., 609 ; Farmers’ Loan and Trust Co. agt. Smitt, Clarke, 540; Robbins agt. Richardson, 2 Bosw., 248.)
    II. ' The character of the original note must control and establish the rights of plaintiff and fix the liability of defendants. That was several; and Bonner’s liability was not changed by giving the subsequent note. It was not intended to be changed. , If so, it was under a mistake, and equity will grant relief. (1 Story’s Eg. Jur., § 167; Hyde agt. Tanner, 1 Barb., 75.)
    By the surrender of the old and giving of the neW note, Bonner received a benefit, became a principal maker. (Battle agt. Coit, 19 Barb., 68; Teaz agt. Chrystie, 2 Abb., 109 ; Berry agt. Radcliff, 6 Johns. Ch., 306 ; Babcock agt. Beman, 1 Kern., 200.)
    Chas. A. Hawley, for the defendants, the executors of Bonner.
    
    I. At law, the representatives of a deceased joint debtor, are totally discharged.. (Bacon’s Abr. tit. "Obligations” D., 4; 1 Chitty’s Pleadings, 36; Lawrence agt. Leake, &c., 2 Denio, 577.)
    II. They are not liable in'equity, unless the survivors are insolvent. (Voorhees agt. Childs, 17 N. Y., 354.)
    III. The repesentatives of a deceased joint maker of a note or bond, cannot be charged at law, and are not chargeable in equity, except upon the presumption that the obligation was made joint by mistake, or upon proof of such mistake. (1 Story’s Eg. Jur., §§ 162 to 164, and cases cited.)
    
    
      
      a. There can be, here, no proof of mistake of fact, because none is alleged; nor any presumption of mistake, because every such presumption is repelled by the allegations of the complaint. It alleges that a joint note was intended,
    
      b, The complaint repels any presumption of mistake of law-—none is alleged. Nor is there any such presumption—nor an y relief if there were. (Lyon agt. Richmond, 2 Johns, Ch., 51; Hunt agt. Ronsmaneer's Adm’rs, 1 Peters, 1; Willard’s Eg. Jur., 59 to 64, and cases cited.)
    
    IV. But the presumption of mistake is only indulged where the deceased joint contractor received a benefit; was in fact a joint debtor and had a liability, independent of the note. The presumption is never indulged in against a mere surety, (1 Story Eg. Jur., §§ 162, 163, 164, and cases cited; Yorks agt. Peck, 14 Barb., 644; Bradley agt. Burwell, 3 Denio, 61; Hunt agt. Ronsmaneer’s Adm’rs, 8 Wheaton, 174.)
    
      a. A surety is bound by bis express contract, and by that only. There are no presumptions against him. (Same cases as above; Griffith agt. Reed, 21 Wend., 505; Walsh agt. Bailie, 10 Johns., 179 ; Penoyer agt. Watson, 16 Johns. R., 99.) And hence
    V. Where one of the makers of a joint note dies, if such deceased maker was a mere surety, his personal representatives are not liable thereon, (1 Story’s Eg. Jur. §§ 162, 163, 164; Hunt agt. Ronsmaneer’s Adm’rs, 8 Wheat., 174; Yorks agt. Peck, 14 Barb., 644; Bradley agt. Burwell, 3 Denio, 61; Carpenter agt. Provost, 2 Sandf., 537; United States agt. Price, 9 How. U. S. Rep., 83 ; Fielden agt. Lahens, U. S. Circuit Court, S. District of N. Y., not reported).
    VI. Bonner was a mere surety
    
      (a.) An indorser, even after protest, is to be treated as a surety. (Pitts agt. Congdon, 2 Comst., 354; Suydam agt. Westfall, 4 Hill, 211; Wood agt. Jefferson Co. Bank, 9 Cow., 206; Griffith agt. Reed, 21 Wend., 506).
    
      (b.) Before protest his liability has not begun to exist.
    (c.) Nor is there any presumption that his liability will ever be fixed. The presumption is that the note will be paid at maturity.
    ( d.) Bonner when he signed the note in suit received no consideration. He had received none, no benefit of any kind. He was freed from no liability, for he had none. There was no independant liability against him. He signed as a mere surety, and the demurrer is well taken.
   Dwight, J.

The rule is well settled, and not questioned here, that, at law, the representatives of a deceased joint debtor are .not liable upon the joint obligation. The complaint in this action is, therefore, in the nature of a bill in equity, and the question raised by this demurrer is whether the allegations of the complaint make a case in which the defendants as the representatives of a deceased joint maker of a promissory note are chargeable upon principles of equity.

I think it clear that it does not.

The doctrine of all the authorities to which my attention has been called, and to which I have been able to refer, is that equity will interpose in such a case only upon proof or presumption that the note was made joint by mistake, when it should have been several, and that such a presumption will arise only where the deceased, whose representatives are sought to be charged, was beneficially interested in the incurring of the obligation; never where he is a mere surety. (Story’s Eq. Juris., §§ 162, 163, 164; Yorks agt. Peck, 14 Barb., 644; Bradley agt. Burwell, 3 Denio, 61; Carpenter agt. Provost, 2 Sandf., 537).

It is upon this principle only, viz.: of the several interest 'in the credit given, that the representatives of a deceased partner have (in case of the insolvency of the survivors), been held chargeable in equity with the joint debt. (Story’s Eq. Juris., § 676, and cases cited).

The fatal defects of the complaint under consideration are, Is#. That there is no allegation of mistake, and 2d, That it appears that the deceased Samuel Bonner was a mere surety, and not beneficially interested in the credit given upon the joint obligation.

The allegations of the complaint show him to have been a mere accommodation indorser upon the original note and the one given for its renewal, and that the note in suit was given in substitution for the last mentioned note before it became due, and for the same consideration. It is true that the complaint alleges that this substitution was accepted by the plaintifi at the urgent request of the deceased Bonner, and upon his statement that it would be an especial favor to him, but these statements do not change Ms relation to the original indebtedness, nor make him anything more than a mere surety upon the note finally made. At the time of the substitution, the indorsed note was not yet due; the liability of the indorser had not been fixed; and there is no allegation that at that time the maker was insolvent; the presumption then was that he would pay the note, and that the indorser would never become liable upon it.

The deceased, therefore, not being beneficially interested in the credit given, being in fact a mere surety, no presumption of mistake will be indulged against him, and there is certainly no allegation of an express contract by which the note was to have been several. On the contrary, the contract expressly alleged is that the plaintiff should rake the joint note of the maker, and indorsers of the previous notes.

I think, the demurrer must be sustained.  