
    Frederick J. Pride v. Ker Boyce, Adm’r of Wm. M’Cauley.
    According to the case of Copis'v. Middleton, 1 Turn. & R. , R. 224 it was held that a surety to several joint obligations who had paid them off some before and some after the death of the principal, was only entitled to come on the estate of the principal as a simple contract creditor. — . The same principle is laid down in the case of Jones v. Davids, 4 Russ, 277. These cases go upon the ground, that the bonds, were extinguished at law by the payment, and that at law the surety’s demand constituted only a simple contract debt.
    But the case is different where the principal debtor dies, leaving the debt unpaid, and the surety calls, in equity, upon the administrator of the principal to discharge the obligation.
    A surety may in equity .compel the principal to relieve him by paying off the debt, and is entitled, it seems, to the benefit of any security which the creditor may have taken from the principal debtor.
    A surety therefore in a joint obligation upon the death of the principal, insolvent, leaving the debt unpaid, is entitled to call upon the administrator in equity to apply the assets in his hands, to the discharge of the obligation as a specialty debt, in preference to' the claims of the simple contract creditors.
    Where it is proved that the parties to a bond intended to execute a joint and several obligation but by mistake of the person who drew it, it was made joint only, equity will, it seems, relieve against the mistake, and put the parties in the same situation as. if it had been made joint and several.
    
    The cases on this subject examined. They seem to establish the principle that if a joint obligation be created merely by the bond or covenant, where there was no previous liability, in that case no relief will be afforded against the estate of the deceased obligor in the event of the insolvency of the survivor, but if there was an antecedent debt to which both parties were liable (as in the case of partners) there the court infers without direct proof that the instrument was made joint by mistake, and relieves accordingly by setting it up as 'a joint and several bond.
    On a still stronger equity it would seem that where there was an antecedent debt to which the deceased obligor was solely liable, would the court set it .up as his several debt in favor of the obligee, where the surviving obligor proves insolvent.
    Where a bond is made joint instead of joint and several by mistake, the appropriate remedy in equity would be to have the instrument reformed, and the party compelled to give such a bond as was intended to be given, this would give the obligee a priority at law, which equity following the law, would recognize. Equity, however, taking' jurisdiction gives complete relief, and will direct the payment of the money as if the bond had been actually made joint and several instead of joint only.
    
      Before DES A US SURE, Ch., at Charleston, April Term, 1835.
    In this case Wm. M’Cauley, defendant’s intestate, died insolvent, and at the time of his death, in October, 1827, was indebted to Messrs. Boyce & Henry, in the balance of $4,436 89, with interest thereon from the 7th day of August, 1827, on his sealed note to them of the 13th July, 1827, for $11,109 90. And was bound to them jointly with the complainant, F. J. Pride, on his sealed note in these woids and figures—
    “ Eight months after date, we promise to pay Boyce & Henry or order, four thousand dollars, with interest, for value received. As witness our hands and seals, August 7th, 1827.
    (Signed) W. M’Cauley, [seal.]
    Fed’k J. Pride, [sear.]”
    The defendant, Ker Boyce, administered on M’Cauley’s estate, and on 30th July, 1828, from assets then in his hands, applied $2,300 towards the payment of this note, and $2,530 towards the payment of the above stated balance on the former note. These two sealed notes, as it is understood, being the only two sealed instruments left by the intestate unpaid, and the administrator has since made other payments on the said two sealed notes. It appears that Pride was only the surety of M’Cauley on their said joint note, and his bill aslis that the assets of the estate may be applied to its payment as a subsisting debt equally with the balance due on the other sealed note. The administrator in his answer admits the payments which he has made and submits himself to the direction of the court. Flemming, Ross & Co. who are simple contract creditors of the intestate to the amount of $2,160 82, with interest thereon from the 22d November, 1827, contend for themselves, and the other simple contract creditors, that as the remedy at law is gone as against M’Cauley’s estate, on the sealed note for $4,000, Pride, who is now solely responsible for it, can only come in on paying it, as a simple contract creditor, and that the administrator is bound first to extinguish the balance due on the first mentioned sealed note, and' to divide all’the residue of the assets among the simple contract creditors, and that he must bring into account with them the amounts which hé has paid on the note for $4,000. The chancellor decided that the complainant, 'as surety, was entitled to set up this sealed note as a specialty creditor, and that the' administrator is bound to apply the assets to pay this note proportionally with the specialty creditors.
    The facts will more fully appear from the report of the master, and the grounds of the decision of the chancellor, from his decree, copies of which are annexed. The following is the master’s report :
    “ In obedience to the order of court made at May term, 1832,1 have given notice to the creditors of Wm. M’Cauley, and taken an account of his debts and assets, and of the monies which have come to the hands of the defendant as his administrator. I fin'd that there is in defendant’s hands $1,172 57, and that his accounts are properly vouched, the only dispute arising out of the payments of two several sums amounting to $2,800 to Boyce & Henry, which it is contended ought not to be allowed. The following statement explains the facts. William M’Cauley, by a sealed note, dated 13th July, 1827, was indebted to'Boyce & Henry $11,109 90. On the 7th August, 1827, Boyce' & Henry received in part payment of the above note, 'a sealed note of Wm.t M’Cauley & F. J. Pride, the complainant in this suit, which note is in the following words:
    “ Eight months after date, we promise to pay Boyce & Henry or order $4,000, with interest, for value received. Witness our hands and seals, August 7th, 1827.
    (Signed) W. M’Cauley, [l. s.]
    F. J. Phide, [l. s.]”
    The complainant, Pride, is merely a surety, having received no part of the consideration of the above note. Wm. M’Cauley died leaving the note unpaid, and E. J. Pride survived him. . Whether the joint note is to be paid out of the assets of M’Cauley in proportion with specialty debts, or whether, as the action is gone at law, Pride, the surety, must come in as a simple contract creditor, or whether, as he has not paid the debt, he can come in at all, are the questions raised before me, which I beg leave to submit to the judgment o£ this honorable court.
    I find that Wm. M’Cauley was indebted to Flemming & Ross in $2,160 82, on a note dated 22d March, 1827, payable in six months, and that there is a balance due to S. Percival of $156 08, for rent of the premises in Columbia, which he occupied at the time of his death.
    If the payment on the joint note - be disallowed, the sum of $2,800 is to be added to the cash in hand. The assets not administered consist of the cash in hand and the moiety of a tract of land on Rock Creek, Chester district, which by the will of David M’Cauley was devised to his sons, James and William, after the death of his widow, whose life estate was purchased by defendant and James M’Cauley, the sum paid by defendant being charged to the estate. There is still due to Boyce & Henry $2,409 90, on the sealed note of 13th July, 1827, and if the payments on the joint note are allowed there is abalance of $2,196 71, on that note.
    A more particular statement of the payments objected to and of outstanding debts will be found in Schedule A, hereunto annexed.
    All which is respectfully submitted,
    Thomas O. Elliott, Master in Chancery.
    
      May, 19, 1835.
    SCHEDULE A.
    Statement. — ‘Amount due on Wm. M’Cauley’s note to Boyce & Henry, dated 13th July, 1827, $11,109 90
    By amount, say P. J. Pride, note 14th July, 1827, in part, 1,350 81
    9,759 09
    By A. J. Green’s note, received 15th July, 1827, in part payment, 1,359 77
    8,399 32
    Interest to 7th August, 1827,23 days, 37 57
    8,436 89
    
      Received, August 7,1827, Wm. M’Cauley & F. J; Pride’s note of this date, bearing interest, in part payment, 4,000 00
    4,436 89
    Interest to 30th July, 1828, 11 months, 23 days, 304 56
    4,741 45
    Received, July 30, 1828, of Ker Boyce, administrator, (on ac’t,) 2,530 00
    2,211 45
    Interest to 27th Dec., 1830,2 yrs., 4 mo., 27 ds. 372 00
    2,583 45
    Received, Dec. 27,1830, from Ker Boyce, adm’r, on account, 600 00
    1,983 45
    Interest to date, Jan. 21st, 1834, 3 yrs., 26 days, 426 45
    2,409 90
    
      Statement of amount due from Wm. M’Cauley and F. J. Pride.
    
    Note to Boyce, Henry & Walter, dated 7th August, 1837, interest from date, !$4,Q00 00
    Interest to July 30th, 1828,11 mo., 23 days, 274 55
    July, 30,1828, Received of Ker Boyce, adm’r of Wm. M’Cau-ley, on account, 2,300 00
    1.974 55
    Interest to 27th December, 1830, 333 34
    2,307 89
    December 27, 1830, Received of Ker Boyce, adm’r of Wm.
    M’Cauley, on account, 500 00
    1,807 89
    Interest to date, 21st Jan., 1834,3 yrs., 26 days, 388 82
    2,196 71
    
      Amount due Percival, 24th October, 1827, $170 00
    interest to 5th Feb., 1830, 2 yrs,. 3 mo., 13 days, 27 21
    197 21
    February 5th, 1830, paid on account, ' 75 00
    122 21
    Interest to date, 21st Jan. 1834, 3 yrs., 11 mos., 15 days, 33 87
    156 07
    
      Decree of Ms honor, Chancellor Desaussure.
    
    “ The master’s report states-the facts of the case and the questions growing out of them.
    It seems that the late Mr. M’Cauley died intestate, indebted to sundry persons, arpóng others, to Messrs. Boyce & Henry, by certain sealed notes of hand for different sums of money, as appears by the schedule with the report. Among these notes was one in these words:
    “ Eight months after date, we promise to pay Boyce & Henry or order, $4,000, with interest, for value received. Witness our hands and seals, August 7th, 1827. Signed, Wm. M’Cauley, F. J. Pride, [u. s,]
    This note was given by Mr. M’Cauley, in part payment of a large sealed note of $11,109 00 dated 13th July, 1827, due by said M’Cauley to Boyce & Henry, and was credited on said note on 7th August, 1827.
    It is conceded that Mr. Pride was a mere surety on said note of $4,000.
    Mr. M’Cauley died insolvent, Mr. Ker Boyce administered on his estate and effects. The remedy against Wm. M’Cauley for the note of $4,000, which was a joint note, being lost on his death, the demand survived against Mr. Pride alone. In administering the estate and effects of Wm. M’Cauley, the administrator (Mr. Ker Boyce) paid on the note of M’Cauley & Pride to Boyce & Henry, on the 30th July, 1828, the sum of $2,530, as appears by the receipts (not agreeing with the statement) and on the 27th December, 1830, the sum of $600 as appears by the receipt (not agreeing with the statement) leaving a balance still then due on said notes of M’Cauley and Pride.
    Of the assets of the estate of Mr. M’Cauley, the administrator insists upon applying the balance due Boyce & Henry on his sealed note, in preference to the debt due on the note of M’Cauley & Pride, also on a sealed note, on the ground that the remedy at law on that joint note, being gone as to the estate of M’Cauley, Mr. Pride, the surety, who is liable to pay the balance of that note, can come in as a creditor of the estate of M’Cauley only as a simple contract creditor: on the cither hand, it is contended for Mr. Pride, that as he was bound as surety with M’Cauley in a sealed note, which constitutes a specialty debt, and that he alone being liable for the balance on said note, as survivor, he is entitled in equity to have the debt set up and to come in on the estate of M’Cauley as a specialty creditor.
    This is the question to be decided. It is not denied that Mr. Pride, the surety, is entitled to come in on the estate of Mr. Mc-Cauley as creditor, on the ground of his liability to pay the whole balance of the joint sealed note of William M’Cauley and F. J. Pride. But it is insisted that he can come in only as a simple contract creditor. This question turns on the equitable doctrine of the court of chancery, and there certainly has been a good deal of diversity of opinion on this very delicate question. The counsel for the plaintiff, relied on the case of Sumner v. Powell et al., 2 Merivale, 30 to 36, 7, 8. On examining that case, it does not appear to me to be so much in favor of complainant as it was supposed to be. The master of the rolls did not give relief, and he said it was not a principle in equity, that every joint covenant shall be considered as if it were joint and several; that when the obligation exists only by virtue of the covenant, its extent is to be measured only by the words of the covenant. But it is different where the obligation is independent of the particular contract, as in the cases of partnership debts, bonds, and it must be kept in mind throughout this discussion that the joint note of Mr. M’Cau-ley and F. J. Pride, was given in part payment of an antecedent debt of Wm. M’Cauley, itself a specialty, and the new joint note a specialty. In the above case from 2d Merivale, the master of the rolls says-, that he had occasion in the case of Devaynes v. Noble et al., reported 1 Merivale, 531, et seq. to examine the authorities on the subject. In looking into that case, it is found to be one of vast extent and variety, covering nearly one hundred pages of the book. One of the principles recognized in it is, that though on the death of one of the partners of a' mercantile house, a debt due by that house is extinct at law as to the deceased partner,— equity will set it up against his estate, and as well as I can discern in the midst of such a vast variety of matter, will set it up in the same character it bore originally. In exparte Kendall 17, Vesey 514,519, Lord Eldon said that upon authority, it has been settled in Equity, that where parties think proper ■ to enter into a joint, instead of a joint and several contract, they have a remedy against the assets of the deceased copartner, if the survivors cannot pay. This is explained in the case of Gray v. Chiswell, 9 Ves. 118, 126, where it was decided that joint creditors cannot touch the separate estate of a deceased partner, till the separate creditors are fully satisfied. It seems on an examination of the cases to be a leading principle that the surety who pays the debt, or is liable to it, is. entitled to stand in the shoes of the creditor and to have all the other securities and remedies against the principal debtor, (for whom he was surety,) which the creditor himself had. If so, then he has a right to come in on the estate of a deceased person, or an insolvent estate, as the creditor could 'do, and as the creditor in this case claims the payment of the existing debt as a specialty, because Mr. M’Cauley’s note was a sealed note, so the surety on a sealed note may come in on the footing of a specialty creditor. A distinction has been made between a specialty debt, actually paid by the surety, and one not paid, but which is due and for which he is liable. In the former, it is said in some of the cases that the specialty -is extinguished, and the surety can come in only as a simple contract creditor. But that in the latter case, the debt still subsisting in its character of a specialty,'and as the liability of the surety entitles him to come for relief, he will bé relieved as a specialty creditor. I agree with the last position, which applies to this case in favor of the surety, Mr. Pride. But I do not perceive any solid reason why, when the court of equity sets up a debt extinguished by payment in favor of the surety against his principal, it should not set it up wholly in its integrity and in its original character. In Burrows, case 1, Equity Rep. 409, it was decided by Chancellors Matthewes and Rutledge, that co-securities in a bond, have a right to call on each other to contribute to pay the debt of their principal, who is insolvent, and to have the benefit of the judgment obtained by the creditor against them all, although satisfaction had been entered up on the judgment, so as to let them stand as judgment creditors, against one of the co-securities who was dead, insolvent, but whose estate could pay his proportion of this debt if considered as a judgment, and a lapse of seven years was no bar to the equity in such a case. In the case of Lenoir v. Winn et al., 4 Equity Reports, 65, it was decided in 1809, that an administrator having neglected to pay a judgment debt by his intestate, and having paid inferior debts, the surety in the bond having paid it off, he is entitled to be repaid by the administrator out of his own estate as a judgment creditor. In that case that eminent lawyer, J udge Nott, was counsel for the defendant and did not think proper to appeal. In Cunningham, adm’r. of Bailey, v. Smith et al., Harper’s Equity Reports, 90-1, the distinction was acted upon as stated above. That where sealed notes are paid by the surety'in the lifetime of Bailey, the principal debtor, the sureties cannot come in upon his estate-as specialty creditors. This does not appear on the face of the report. But Col. Blanding, who was perfectly acquainted with the case, informs me that fact was so, and the debt on the sealed note was thus extinguished, and the surety it was supposed could then come in only as a simple contract creditor. In executor of Carson v. Richardson, 3 M’Cord. 528, and afterwards in Potts & Joor v. Richardson, 2 Bail. 15, it was decided that though the judgment was paid off, the same should be considered to be alive and in force, according to a stipulation in favor of a surety or voluntary payer of part of the judgment.
    In 1 Hill. Ch.'Rep. 344-5, the court of appeals declared that the security who pays the debt of his principal, has the right to be remitted to all the rights and securities of the creditor,” and applied that principle to the case then under consideration, and as in Brown & Burrows v. M’Whann, adm’r., vacated the entry of satisfaction on the judgment, in order to protect the surety.
    In 1 Hill. Law Rep. 309, Richbourgh v. West, the court decided that the bail who paid off an execution to the plaintiff and took an assignment, was entitled to all the rights of the plaintiff, and was preferred to junior judgments. In Hampton v. Levy, 1 M’Cord. Ch. Rep. 117, Judge Colcock in delivering the judgment of the court of appeals, declared in conformity to the doctrine slated by the chancellor from 1 Madd. Ch. 234-5, that the surety is entitled to every remedy which the creditor had against the principal debtor, to enforce every security and all means of payment, &c. In Lowndes & I’On v. Chisolm, 2 M’Cord. 455,464, the court of appeals again affirmed the doctrine, that the surety has a right to all the securities and means of protection which the original creditor had, even after they had paid the debt and the mortgage thus appeared satisfied.
    Upon the whole, I am satisfied that both on principle and on the majority of decided cases, Mr. Pride, the surety in the joint sealed note with Mr. M’Cauley, to Boyce & Henry, which has not been paid, should be considered as a specialty creditor, and he is entitled in equity to have the funds of the estate of M’Cauley applied to the payment of that debt, as far as they will go, proportionably with other specialty debts. And it is so ordered and decreed.
    The court was also asked to make an order for the sale of the land of the late Wm. M’Cauley, and the proceeds to be applied to the payment of his debts, and it is ordered and decreed accordingly. The parties will agree on terms of sale, and if they do not agree, submit propositions of terms to the judge at chambers.
    Upon further consideration, I think it proper to add the following explanation. The doctrine under discussion and its application to this.case, may be summed up as follows: The debt on the joint sealed note of William M’Cauley & F. J. Pride, to Boyce & Henry, was a specialty debt. It continued so at the death of M’Cauley. The remedy of the creditor against the estate of M’Cauley was lost by his death. Mr. Pride was alone liable as survivor on the joint note. But he as surety and alone liable to the creditor, has an equitable right to set up this demand against
    
      the estate of M’Cauley, and in the character and degree in which the debt stood at the death of Wm. M’Cauley, to wit, a specialty debt. The administrator of the estate is therefore bound to apply the assets to pay this note proportionably with other specialty creditors.
    See the whole doctrine well stated in Theobald, on the law of principal and surety. 1 vol. Law Library, Philadelphia.”
    From this decree an appeal was taken to this court, on the grounds:
    1. That the complainant is not entitled to set up this note as a specialty debt.
    2. That the administrator is bound to bring in account with the simple contract creditors, the amount that he has paid on the note of 14000.
    The appeal was argued February 24, 1837, before Chancellors Johnson, Harper and Johnston, (Chancellor Desaussure absent from indisposition,) by King and Walker for the appellant, and by Petigru for the appellee.
    It was again set down and argued, March 16 and 17, 1837, by the same counsel before the same chancellors on the following questions:
    1. Was the single bill of M’Cauley & Pride, paid by the assets of M’Cauley, coming to the hands of Boyce, (one of the obligees,) who became his administrator.
    2. Was the contract contained in the single bill, extinguished at law, as to M’Cauley, by his death; or only the remedy on the contract.
    3. May M’Cauley’s administrator, recognize the validity of the bond, as a bond debt: or, retain for it as such, without violating the provisions of the act of assembly.
    4. Would an administrator be liable to the other creditors, as for a devastavit, for paying such a bond, without suit: or for refusing to plead the survivorship of the co-obligor in abatement: ihe administrator acting upon the consideration that his intestate was the real debtor.
    5. When equity relieves the obligee of a joint bohd, out of legal assets of a deceased obligor, (living the other obligor,) does it set up and decree payment of the contract as a bond; or what rank does it assign it?
    6. Is Pride more entitled to relief, not having paid the bond, than if he had paid it?
    7. Can the bond for which M’Cauley and Pride gave theirs, be set up in exoneration of Pride ?
    The court took still further time to consider, and at March term, 1838, Chancellor Desaussure having resigned, and Chancellor Dunkin having been elected in his place, the cause was again heard before the same chancellors who had heard the two former arguments, and by the newly elected chancellor.
    The cause was then adjourned for further consideration till the present term, when the opinion of the court was delivered as follows :
   Cueia, per Haefek, Ch.

This case ■ has been long under consideration, and though we have bestowed upon it all the attention in our power, it is not without hesitation and difficulty that we have come to a conclusion. The case of Copis v. Middleton, 1 Turn. & Russ. 224, is that which is supposed to have the strongest bearing on the present case. In that case, where a surety had paid off bonds, some before and some after the death of the principal, Lord Eldon held that he could only come on the estate of the principal as a simple contract creditor. The same thing was determined in the ease of Jones v. Davids, 4 Russ. 277. These cases go upon the ground that the bond was extinguished at law by the payment, and that at law, the surety’s demand constituted only a simple contract debt. Admitting the authority of those cases, (though the contrary was decided in the case of Hotham y. Stone, reported in the note to Copis and Middleton, by an authority only inferior to that of Lord Eldon, and though they seem to be against the leaning of our own cases referred to by the chancellor) — is there any thing in the present case to distinguish it from them ? The only circumstance is, that the surety has not in fact paid off the debt, but it is still a subsisting obligation.

It is sufficiently settled that to entitle himself to a remedy against his principal, the surety is not bound first to pay off the debt. It is laid down in Hayes v. Ward, 4 Johns. Ch. C. 190, and in King v. Baldwin, 2 Johns. Ch. C. 562, that a surety may in equity compel the creditor to sue, proffering an indemnity against costs and expenses. It is perhaps more accurately stated by Sir Wm. Grant, 3 Meriv. 579, that the surety may compel the principal to relieve him by paying off the debt. The complainant comes for this purpose, in the present case, and his right to do so is not questioned. The only dispute is as to the rank which the debt shall bear in making the payment.

Lord Eldon in the case of Copis and Middleton, recognizes the equity doctrine, that a surety is entitled to any security which the creditor may have taken from the principal debtor, as if there be a mortgage taken by the creditor, though the debt be paid, yet the title remains in the mortgagee until a reconveyance, and the surety is entitled to the benefit of that. He founds his decision upon the mere technical ground, that, the bond was absolutely extinguished at law by the payment, and the surety made a simple contract creditor, and the matter is put upon the same footing by the Vice-Chancellor in the case of Jones v. Davids, 4 Russ. 277. Lord Eldon says, that if an action were brought upon the bond, it would appear upon oyer of the bond, that the .debt was paid, and no action could be maintained in the name of the obligee. But in this case, the bond is not extinguished at law, but continues a valid subsisting obligation in the hands of the' obligee. It is extinguished in his hands as against the deceased obligor. But it is not the creditor who is seeking relief against the deceased obligor. It is the surety, upon a distinct ground of equity,, seeking to compel the principal to pay off his (the surety) bond debt. This seems to make a distinction between the present case and that of Copis and Middleton; in that case the bond was totally extinguished at law by the surety’s own act; here it was extinguished at law, only as to the deceased obligor, by an event not within the surety’s control. The creditor has no right to resort to the estate of the deceased obligor, but in the event'of the insolvency of the survivor. But as I have said, the surety has a right to compel the principal to pay off that which equity regards as his debt and which is a debt by specialty.

Equity it is said, inclines to put all creditors on a footing of equality, and if the surety had thought proper to pay off the debt, voluntarily making himself a simple contract creditor, he would have no claim on equity to put him in a better situation. But if this were joint and several bond, there is no doubt but that in distributing legal assets, equity would follow the law and preserve the creditors priority. It is not disputed, but that if it were proved that the parties intended to execute a joint and several obligation, but that by a mistake of the person who drew it, it was made joint, equity would relieve against that mistake and put the parties in the same situation, as if it had been made joint and' several.— But upon an examination of the cases, they seem to me to establish a rule of this sort, that if the joint obligation' be created merely by the bond or covenant, where there was ho previous liability, in that case, no relief will be afforded against the estate of the deceased obligor, in the event of the insolvency of the survivor.— But if there was an antecedent debt, to which both parties were liable, as ‘in the case of partners, then the court infers, without direct proof, that the instrument was made joint by mistake, and relieves accordingly, by setting it up as a joint and several bond, and on a still stronger equity it should seem, that where there was an antecedent debt to which the deceased obligor was solely liable, would the court set it up as his several debt, in favor of the obli-gee, where the surviving obligor proves-insolvent.

In Primrose v. Bromley, 1 Atk. 89, the assignees of the bankrupt had entered into a joint covenant to account for what they, or either of them, should receive. This was held a specialty debt against the estate of the deceased assignee. It was said that the words, “or either of them,” must be so construed as to make.it a joint and several' debt, and that they were- trustees in this court. The chancellor states a case previously decided by him, in which, where one party to a joint bond died, he compelled the representative of the deceased to pay pari passu. I presume that both were liable previously to the bond, and if so, the decision would be to establish, that in every such instance, the bond will be regarded as joint and several.

In Simpson v. Vaughan, 2 Atk. 31, a joint bond was given for money loaned to partners. Lord Hardwicke says, “the principal ingredient for the plaintiff is, that it is not a debt in the way of trade, but as an actual loan of a sum of money,- and the debt arises from the contract itself, and if there is any defect in the bond, the court will resort to what was the principal intention of the parties, that they should be severally and jointly bound.” “ It is the lending on one side, and the borrowing on the other, that makes the strength of these cases.” The bond was drawn by one of the partners; Lord Hardwicke acquits him of fraud, but infers, without any express proof, so far as I can perceive, that it was so drawn by mistake.

In Bishop v. Church, 2 Ves. 100, 371, a joint bond was given for money borrowed by two partners. The condition was, “if they, or either of them, should pay,” and it was contended that this should make equity regard it as a joint and several bond.— There was also a question, whether there was not a rebutting equity growing out of the laches of the creditor. Lord Hard-wicke rejected the notion of the conditions making the contract joint, and overruled the other defence. He set up the bond against the deceased obligor, without any proof or suggestion of its being made joint by mistake, and against the heir as well as the executor, on the ground that equity regards the condition of the bond as the agreement of the ancestor, by which the heir is bound.

In Thomas v. Frazer, 3 Ves. 399, two partners gave a joint bond for a partnership debt, and in part for a joint note they had previously given. It was charged by the bill, that the bond was intended to be in the common form of a bond by two persons, and that it was made otherwise by want of skill, or ignorance. The bankrupt survivor admitted that the bond was intended to be in the usual form, but stated that he did-not know the difference between a joint, and a joint and several bond. The chancellor said, the bond would be no better than the note, unless it were made joint and several; the defendant’s was the usual admission. I may observe that the admission does not show that the bond was given otherwise than as the parties intended, and I apprehend that the principal ground of the decision must have been the previous liability of both parties. To the same effect were the cases of Bate v. Hinchell, and Furman v. Grace, reported in a note to the former case.

The principle is explained according to the view I have taken, by Sir War. Grant, the-master of the rolls, in the case of Sumner v. Powell, 2 Meriv. 30, referred to by the chancellor. In that case, where there was no antecedent debt, but the liability was created solely by a joint covenant, made by several, the master of the rolls refused to relieve against the estates of the deceased covenantors, upon the bankruptcy of the survivors. He says, “The question is, whether any other effect can be givfen to this covenant in equity, than it has at law ? It has never been determined that every joint covenant, is in equity, to be considered as the joint and several covenants of each of the covenantors. • In the late case of Devaynes v. Noble, I had occasion to examine the authorities on this subject, and found no such general proposition any where laid down; where the obligation exists only by virtue of the covenants, its extent can be measured only by the words in which it is conceived. A partnership debt has been treated in equity as the several debt of each partner, though at law it is only the joint debt of all. But then all have had the benefit from the money advanced, or the credit given, and the obligation to pay exists, independently of any instrument by which the debt may have been secured; so where a joint bond has, in equity, been considered as several, there has been a credit previously given to the different persons, who have entered into the obligation. It was not the bond that first created the liability to pay. But in this case, the covenant is purely matter of arbitrary convention, growing out of no antecedent liability in all, or any, of the cove-nantors, to do what they have thereby undertaken.”

This agrees with the case of Rawston v. Parr, 4 Russ. 424, 539. Creditors claimed to prove a joint .note against the estate of a deceased surety, the surviving makers and principals being insolvent. The master of the rolls allowed the claim, but his decree was reversed by the chancellor, Lord Lyndhurst. It was argued, that there are two classes of cases in which equity will set up a joint instrument as joint and several — where there was an actual intention to make it joint and several, or where there was an antecedent debt or liability. Here was no antecedent liability of the deceased — and being set up as a debt against the estate of the deceased obligor, -it must’be. set up as a specialty, debt, with all its consequences, so as to give it priority. The matter was fully considered by Lord Rosslyn, in Burn v. Burn, 3 Ves. 573. There was full and explicit proof, that the bond was made joint through ignorance and mistake, where -it was intended to be joint and several, and the question was, whether it should be set up as a specialty, so as to give it priority over simple contract debts. — • The chancellor refers to the cases on the subject and says, that though the point has not been specifically determined, yet he is satisfied that from'the time of Bishop v. Church, it has been understood to be the course of the court, to set up the contract in toto.

In Pierce v. Acton, 2 Ver. 481, where the husband had given a bond for £1000 to his wife, before marriage, and afterwards mortgaged his estate and died, the wife brought a bill to set up the bond and to redeem, it was argued that though it might be set up as an agreement in equity, as to the personal estate, yet it would not do to set it up as a specialty. The Lord Keeper said, the bond, if set up, must be wholly and entirely set up, and not in part only to bind the personal assets and not the real.

And so it seems to me it must be, though equity inclines to equality among creditors, yet in distributing legal assets, it preserves legal priorities. It being assumed that the bond was.made joint,, instead of joint and seyeral, by mistake, the appropriate remedy in equity, would be to reform the instrument and compel the party to give such a bond as was intended to be given, this would give the obligee a priority at law, which equity following the law, would recognize, equity, however, taking jurisdiction, gives complete relief, and will direct the payment of the money. It will direct it, however, as if he had conformed himself to its peculiar province, apd the bond were actually made several, instead of joint. •

Here, the deceased obligor was-alone previously liable, and the surety has at least equal equity, to make it his several debt. He was liable too on a security of as high a nature, as that by which the complainant is now bound — and it may well be questioned, whether the first bond was in any degree affected or extinguished by the giving of the second, and whether it does not still remain a valid and subsisting obligation for the whole debt. The decree of the chancellor is therefore affirmed.

King & Walker, for appellant.

Petigru, for appellee.

Johnson and Dunkxn, Chancellors, concurred.  