
    Harrison Executor of Minge v. Margaret Field Executrix of James Field.
    October Term, 1795.
    Joint Bonds — Death of Surety. — II a bond be made joint, without fraud or místate, Equity will not charge the executor ol'the surety, who was discharged, at Law, by his death, in the life-time of the principal. Aliter, if the lending had been to both.
    This was an appeal from the High Court of Chancery. The case was. — -The testator of the appellee having loaned to William Claiborne a sum of money, he, together with Minge as his surety executed a joint bond to the testator for payment thereof. The bill states, that the testator of the appellee did not discover until after the death of Minge, (who was survived by Claiborne) that the bond was joint instead of joint and several. That Claiborne was at that time and is now insolvent; that the loan was made entirely on the credit of Minge, and that the bond was executed at a time when Field was not present. The object of the bill was to recover the debt from the executor of Minge.
    The appellant demurred to the relief sought, and assigned as cause thereof, that by the appellees own shewing, the bond was joint, and that Minge died in the lifetime of the other obligor. He also answered, asserting that Claiborne was in good circumstances when the loan was made; and avers that he neither knows nor believes that the loan was made on the credit of Minge, or that the bond was made a joint one by mistake or fraud.
    The demurrer coming on by consent to be argued was overruled, and commissions for taking depositions were awarded. But the cause being brought on during the same term for a hearing upon the bill, answer, and bond, a decree was pronounced that the appellant out of the estate of Minge in his hands to be administered should pay to the appellee, the principal money due by the bond (reduced according to the scale of depreciation) with interest and costs.
    *From this decree Harrison appealed.
    Copland for the appellant.
    The appellee having lost her remedy at law, a Court of Equity can upon no principle revive the duty, unless the bond were made joint by fraud, mistake or the like. If a Court of Equity can do this, it can supply the want of a seal, or bind heirs tho’ not named in a deed; in short I know not what the omnipotence of that court may not do. Except cases, in which trust, accident or fraud are mingled, a Court of Equity cannot change the settled principles of law.
    Stark for the appellee.
    The relief afforded by the Chancellor in this case, is founded upon well established principles which prevail in Courts of Equity. Though the remedy be gone, the duty is conscience still exists, and a Court of Equity will look back to the contract which preceded the evidence of it, and give it validity. The moral obligation to pay, cannot be done away by any accident destroying the evidence of that obligation, or which discharges the party from the legal remedy against him. The claim of a surety to be freed from this relief is not well founded, since in all cases the loan is made, or will be presumed to have been made upon the faith and credit of the surety. Questions of this sort in the courts of England seldom occur, since almost all bonds in that country are accompanied with letters of attorney to confess judgment, and disputes like' the present are never heard of, but when applications are made to correct irregularities in entering up the judgments. The bill states that the bond was drawn by Claiborne in the absence of Field, and this is not denied in the answer. The case of Acton and Peirce 2 Vern. 480, affords an instance where a Court of Equity will grant relief, tho’ the remedy is gone at law. In this case, it was even afforded against an heir who was not bound at law. The case of Simpson and Vaughan 2 Atk. 32, seems to be in point, and it establishes the principle I contend for, namely, that the court consider the contract as distinct from the evidence of it. In that case, a joint bond was given which does not appear to have been so made by fraud, or accident, and yet the executor of the deceased obligor was bound. The Chancellor presumed the bond was drawn by an unskilful hand ; in this country it is notorious that they are generally drawn by such persons. Bishop and Church 2 Ves. 101, tho’ it differs from the present case in one circumstance viz. that the obligatory part is joint, and the condition joint and several, yet it establishes the principle laid down in Simpson and Vaughan. Probart and Clifford, cited in 2 Viz. 102, is also a strong case.
    *We know that equity will set up • a lost bond even against a surety, tho’ the remedy be gone at law. So if A and B were bound in a bond to C, who should make the wife of one of the obligors his executrix, this would at law be a release to both obligors, yet a Court of Equity would relieve. But if I am wrong upon this point, the court will, if the decree be reversed, send back the cause, that the parties ma3r have liberty to take depositions, as the case was heard at the same term when the demurrer was over-ruled, so that the plaintiff below had not an opportunity to prove such facts as might give a different complexion to his case.
    Copland in reply.
    It is not true that a Court of Equity will afford relief in cases where the remedy is gone at law, merely because there exists a moral obligation on the part}' to pay. Thus, where there is a deficiency of personal estate, that court, no more than a court of law can subject the real estate to the payment of a debt however justly due. The case of Acton and Peirce is unlike the present, because in that, the intention of the parties and the mistake in the deed were apparent. Simpson and Vaughan is bottomed upon the loan having been made to both obligors, and consequently, the contract, which preceded the execution of the bond, was equally obligatory on both, and imposed on both a moral obligation to'pay. This is the very ground of the Chancellor’s opinion. In that case, the survivor became a bankrupt; and tho’ in this case it is charged in the bill, that Claiborne was at the time insolvent, or afterwards became so, the fact is neither admitted in the answer, nor established by proof. The case of Heard and Stamford, Eorrest 174, is in principle very much like the present.
    As to Mr. Stark’s expectation, that if this court should reverse the decree, the cause will be sent back for depositions to be taken, it need only be remarked that the hearing of the cause without depositions was by consent of parties.
    
      
      Joint Bonds — Death of One Obligor — Survival.—In Somerville v. Grim, 17 W. Va. 808, the court said: “Before our statute if one obligor in a joint bond. was dead and the other living, the action could only be against him who survived. It was gone forever as to the representatives of the deceased obligor. His estate was entirely exonerated from the payment of the debt by his death; and the burden was wholly upon the obligor that survived. If the last surviving obligor died the action remained against his representatives. .1tinoe ®. Field, 2 Wash. 138; Elliott v. Lyell, 3 Call 268; Chandler v. Neale, 2 Hen. & M. 121; Atwell v. Milton, 4 Hen. & M. 253; Roane, Judge, in Atwell v. Towles, IMunf. 181; Braxton v. Hilyard, 2Munf 49.“ For this proposition, the principal case is further cited with approval in Reynolds v. Hurst, 18 W. Va. 654; Chandler v. Neale, 2 Hen. & M. 131; Atwell v. Milton, 4 Hen. & M. 256: Atwell v. Towles, 1 Muni'. 180. See foot-notes to Elliott v. Lyell, 3 Call 269; Crawford v. Daigh, 2 Va. Cas. 521; Richardson v. Johnston, 2 Call 527.
      Same — Same. — For the proposition that where money is lent to both the obligors in a joint bond, the law raises a promise in both to pay. the principal case is cited in IT. S. v. Archer. 24 Fed. Cas. 849. The principal case is cited with approval in Powell v. White, 11 Leigh 329.
      Equity Jurisdiction — Setting Up Lost Instrument.— As to the point that equity will set up a lost bond as well against the heirs of an obligor, as against a surety, see the principal case cited in Kerney v. fferney, 8 Leigh 484.
      In Hickman v. Painter, 11 W. Va. 395, a bill was filed by the plaintiff to set up a lost receipt, which the defendant had given to the plaintiff, as constable, for certain claims, put in the constable's hands for collection. On demurrer it was held, citing the principal case as authority, that the court relieves against the accident of the loss, by setting up the evidence of the debt.
    
   ROANE, J.

In this case there is no evidence that the bond was made a joint bond by fraud or mistake, or if any such did exist, that Minge was privy to the same. The chance of survivorship was equal, and Minge was willing to submit to the legal consequences of such a bond. There may possibly exist reasons with an obligor for prefering a joint, to a joint and several bond, and it is impossible for this court to decide whether such reasons did, or did not prevail with Minge. The law is laid down in the case of Towers and Moor, 2 Vern. 99, that in a joint bond, the duty survives against the surviving obligor. *The case of Simpson and Vaughan goes expressly upon the lending being to both of the obligors. A moral obligation therefore was imposed upon both by the contract, to pay the debt, and if by the form in which the bond was drawn the remedy was gone at law, the court thought it equitable to relate back to the moral obligation which was equally strong on both of the obligors. But in this case, the surety was under no moral obligation, not having been a borrower of the money, and was onlv bound by the bond itself; no antecedent contract therefore subsisted between him and Field whereon to found an equity for the extraordinary interposition of the Court of Chancery. The case of Bishop and Church also goes upon the lending being to both of the obligors. I will not say that there may not be circumstances which would subject even a surety to the relief now sought for, but I am clear that the present case is totally destitute of them, and therefore I am of opinion that the decree is erroneous.

FLEMING, J.

In the cases of Simpson and Vaughan, and Bishop and Church, the obligors were partners in the business; both had the benefit of the money lent, and the survivor became bankrupt. A stronger case could not have occurred to warrant the equitable relief g-ranted by the court. In the latter case, the Chancellor postponed a decision of thfe cause, that enquiry might be made into the neglect suggested against the obligee, and it is highly probable that if that had been proved, he would have dismissed the bill. In this case Field, if he could upon any ground have been entitled to the relief he now asks for, would come into a Court of Equity with a very bad grace, after lying by so long as he has done, until Claiborne, the principal, has been reduced in his circumstances, and as the answer suggests is now unable to pay. Upon the whole, I am of opinion, that Minge was a mere surety, not bound at all in conscience, and his executor being exonerated at law ought not to be charged in equity.

The PRESIDENT. The case of Acton and Peirce in principle has no application to the present. A husband upon his marriage agreed to leave his wife ^1000 if she survived him; a bond for this purpose was drawn by an unskilful hand, and was made paj’able to the wife, with condition to leave her the ¿flOOO. In this case, the husband was by his agreement, and for a consideration deemed valuable in law, a debtor to the wife, and under a moral obligation to pay. Tho’ the remedy was gone *at law by the intermarriage, and that, in consequence of the unskilfulness of the drafts-man, yet the husband’s conscience was bound, and therefore the court very properly considered him as a trustee for the wife. The principle contended for by Mr. Stark, that a loan creates a moral obligation to pay, which being a duty antecedent to, and independant of the bond, cannot be discharged by the loss of the bond, or by other accident is true, as to the borrower, and the cases of Simpson and Vaughan, and Bishop and Church are decided upon this ground only.

The Chancellor indeed in Simpson and Vaughan is made to say, that no stress was laid upon the circumstance of the obligors being partners. But this is certainly a mistake of the reporter, for in the case of Bishop and Church, the counsel, speaking of Simpson and Vaughan says, “the consideration your lordship went upon, was, that it was a sum lent to both, of which both had the advantage, and a debt arose against both from the nature of the transaction.” In this assertion he is not contradicted by the Chancellor, which would seem to prove that the lending and borrow-, ing was the ground upon which the decision in that case was bottomed. The principle then of these cases has no application to the present. The surety received no benefit from the loan ; he was bound by no contract express or implied, antecedent to the bond he was under no mosal obligation to pay, and of course equity would not bind him farther than he was bound at law.

It is a maxim, that where equity is equal, he shall prevail who has the law in his favor, and the cases cited in Francis’s maxims of equity p. 71, as an illustration of the principle are very strong indeed, to shew that a surety has equal equity with the obligee, and being discharged at law, equity will not charge him.

It is true a Court of Equity will set up a lost bond against a surety, but the reason is, that the surety is not discharged by the loss of the bond, and the court only relieves against the accident by setting up the evidence of the debt.

It was argued that it did not appear that Minge was a surety. This is a fact not to be disputed, since the bill itself so states it. Bonds are sometimes so drawn that it is impossible to distinguish the surety from the real debtor, but when distinguished by proof, the uncertainty arising from the face of the instrument can make no difference in the principle. Since the act of Assembly which gives to sureties a summary remedy against their principals, it might be well to distinguish in the bond, the one from the other.

*It was contended that the demurrer admitted the truth of the allegations in the bill. It is true that a demurrer without an answer does admit the facts charged on the other side, but if the defendant also answers and denies the allegations of the bill, as the defendant has done in this case, it cannot be said that they are acknowledged. When the demurrer was overruled, general commissions for taking depositions were awarded, of which the plaintiff might have availed himself if he had wished to establish any facts important to his cause. But instead of this, he appears to have consented to bring on the cause for a hearing without testimony, and therefore there is no ground for giving him an opportunity now of taking depositions.

The Opinion of the Court is, “that the testator David Minge having been neither the borrower, nor the user of the money lent to, and used by Claiborne, but a security only, ought not in equity to be further or otherwise bound than he was bound by the contract at law; and no fraud or mistake appearing to have occurred in the writing of the bond, it is to be considered as a joint obligation and subject to the legal consequence of Minge and his representatives being discharged by the death of him in the life time of Claiborne, and that the said decree is erroneous.”

Decree reversed with costs and the bill, dismissed.  