
    Alvia Spear v. Bezaleel Gillet,
    From Wake.
    Where, upon a contract by copartners, made in Virginia, the bond oí one was taken to secure the partnership debt, it was held, that if by the law of that State the contract lie joint, the execution of the bond extinguished the debt ; if joint and several, that it was no merger of the simple contract debt against the other partners ; and as the creditor' had a plain remedy against them at Law, a Court of Equity could not aid him, further than by a disco very ; and this, although lie averred, that the bond was executed in the copartnership name by on.- copartner, in ignorance on his part, that it did not bind the copartnership.
    The case made by the bill was, that the Plaintiff, a resident of Virginia, in the year 1819, sold to a copart-nership, which lie then thought consisted of Leonard Merriman, John Merriman, and David Gillet, a quantity of goods — -that being ignorant of the rule of law, that one partner could i¡«» bind She copartnership by deed, be took from Leonard Merriman, who made the purchase, an in-strumení signed and oeab'd in ího copartnership name; that being ad* wed that the other partners were not, bound hj She bond executed by Leonard Merriman, ih<> Plaintiff cossisaeneed action against hic.» aionc, and bad, upon final process, imprisoned him ; but being entirely insol" ven!, be had been discharged under the insolvent laws. That riuce the discharge of Merriman* tii<- Plain tiff had discovered that the Defendant was also n member of the copartnership of Merriman & Gillel.
    The bilk prayed for a discovery, and that the Defendant might be decreed to pay the Plaintiff Urn amount of t!»© bond cxeuired by Leonard Merriman.
    
    An answer was filed, and proof taken s but a srar aoary ef them is unnecessary.
    
      W. II. Maywood, for the Plaintiff.
    
      fht$!on cj' Deversme, íbr iba Defendant,
   Ruffin, Judge.

— A very evasive answer, in this case, raises a strong suspicion in say mind that the Deiendant was a partner, which is fully confirmed by the proofs. )i should therefore be pleased, if 1 could, to make hitn liable to a debt which he justly owes ; and especially ¡since the nature of his defence hm* has held up the case, until it is too late to sue at Law. Bat 1 believe there is r:c ground for tills Court to relieve on, and the bill a;ufs ht h-mi-m-d.

if the contract is to be regarded as joint raid several, or although made in Yii’ginia, if it can be enforced lure, under our statute, by a joint or several suit, the bond of Merriman did not extinguish it, as to any body bill himself. Thai is common doctrine; and is exemplified every day in suits being brought against one joint and several obligor, after a judgment against another. The ¡remedy at Law by ammmit remained against the other partner.•íV- ¿lerrman bad given his bond. It is not like a w nidi supposes or imports a satisfaction. It is a;' ¡5 ; !¡y ‘X ¡¡¡guislnnent of the simple contracts as f4l. r,n vegards Mérrima» and no farther.

if v the orhrr hand, the contract of partners is by the Lnw of Virginia joint, and not joint and several, then it is extinguished altogether by taking the bond of one of them; because it is as to the obligor himself, and the others cannot be sued without him. If the others are sued separately, they may plead it in abatement. If they are all sued jointly, then the bond is a bar. It is like the case of a judgment against one of two joint obligors j after which the security cannot be further proceeded on, and is lost, (Brown v. Wooten, Cro. Jac. 73). Is there any thing to induce Equity to interpose ? The party has himself extinguished his legal remedy for a mere legal demand. The mere loss of a debt does not raise an equity. Negligence or mere ignorance does not call into action this jurisdiction. That is tiie party’s fault. There must be some accident, fraud or mistake. When he took the bond of one partner, it. is proved that he trusted that one. He cannot say that he is entitled to a better security now, because he might have had it at first, if he had chosen. He made his selection, and must abide by it. In the present case, the bill admits that the Defendant was not trusted; for the Plaintiff did not know him as a partner, and never discovered that he was until after judgment against the other. His own folly iri trusting a man unworthy of it, or in omitting to ascertain whom he had bound for the price of the goods before he took a security, by which a part, then legally bound, became discharged, cannot be helped. If this had been a subsequent arrangement, upon any representation that there were no other partners at the, buying of the goods ; or if it were shown, that the goods were bought under an agreement to conceal the partners, and with a view to Memmari's insolvency, flie matter would be different. That w.mld be a fraud. But here, she scope of the bill i * % Is to got a security, winch the Plaintiff aa^üís ho i\h\ not contract for, upon the ground that at Law ho had it with-ou< his kno wledge, and without his knowledge has lost if. There is no such head of Equity, that I know of. This Is not like following the assets of a d<v\>st'd partner, apon the insolvency of She survivor. That goes upon the idea, that both were trusted, and each looked to, and the accident of the death of one shall ttoi defeat the cre-dltor. But that idea is completely rebutted, when a several security is originally-taken from one of the pash-iters. 3 repeat, that the whole ground of the bill is, that the Plaintiff, in willful darkness, made a had bargain in. the exchange of .securities. When he gave up his remedy at Lav/ by Isis own act, he gave up that in Equity— there being no fraud.

Henderson, Chief Justice.

— The Plaintiff has come Into this Court, upon a clear case for an action of as-sumpsii at Law, for goods sold to a firm of which he alleges the Defendant was a partner. If indeed he had alleged, that he could not prove- the fact of a partnerships and asked for a discovery to aid him at Law, tins Court would ¡save granted him the aid required : but cannot, 'a here there is a clear legal remedy, give relief. The giving of the bond by one copartner certainly does not extinguish the simple contract debt, as to the other j for merger, which is an operation of the law, never works, an injury. The bond could not merge the simple contract, but as to those who were bound by it; as to therm a written evidence and higher remedy aregiven. If therefore a person gives a bond for his own simple contract debt, the simple contract debt is merged ; but not so, if lie gives a bond for his own bond debt. The latter may possibly be given in satisfaction of the former; hut there ?s no merger. So. if one gives a bond for the simple contract debt of another, the simple contract debt is not merged, and may be enforced. If a creditor sues one of two obligors or promissors, and obtains judgment, the 0i.jgjnai suit as to the other remains, and-is not merged in the judgment 5 and may be sued on as if no judgment had been obtained. This is every day’s practice and experience.

Per Curiam.

— Lot the bill be dismissed with costs-  