A general statute enacted that a party might stay by injunction
proceedings in a suit at law on executing a bond, "with one or more
sufficient sureties," conditioned &c. A., a defendant in a case
at law, being about to apply for an injunction to stay that suit,
did accordingly execute a joint bond with B. as co-obligor; B.
having no interest in the suit nor deriving any benefit from the
execution of the bond.
Held that there was nothing in the
language of the statute which compelled the bond to be joint
merely, instead of joint and several, and that being in
Page 82 U. S. 141
terms joint merely, and B. being in fact but a surety, there was
no right in the obligee (A. being insolvent) to pursue B.'s estate
in equity, B. having died before A. and B.'s estate being so
discharged at law.
A statute of the State of New York thus enacts:
"No injunction shall be issued to stay the trial of any personal
action at issue in any court of law until the party applying
therefor shall execute a bond, with one or more sufficient
sureties, to the plaintiff in such action at law in such sum as the
chancellor or master allowing the injunction shall direct,
conditioned for the payment to the said plaintiff, and his legal
representatives, of all moneys which may be recovered by such
plaintiff or his legal representatives, . . . in such action at
law, for debt or damage, and for costs therein."
With this statute in force, Pickersgill sued Lahens at law in
the superior court of New York, a common law court, on certain
endorsements. Thereupon Lahens filed a bill in the court of
chancery of the state for relief against the endorsements, and
having done so, applied under the above-quoted act for an
injunction to stay the trial at law. The court upon the filing of a
bond meant to be such as the above-quoted act required, granted a
temporary injunction staying the suit at law till an answer to the
bill in chancery should come in. The bond was the
joint
bond (not the joint and several bond) of Lahens and one Lafarge,
this Lafarge not having been any party to the suits already
mentioned, nor interested in them, and not deriving any benefit
from his joining in the bond. The bond recited the action at law
against Lahens, the bill and injunction in chancery, and the
condition of the instrument was that the obligors should pay all
moneys which should be recovered in the suit at law. Answers to the
bill for relief having come in, the action at law proceeded, and a
judgment was rendered against Lahens for $129,000. Before this
time, Lafarge had died, and at the time Lahens had become
insolvent. Thereupon Pickersgill filed a bill in equity against the
executors
Page 82 U. S. 142
of Lafarge, to have his estate pay the amount of the bond, with
interest from the recovery of the judgment against Lahens. The
executors demurred, assigning among other grounds of demurrer that
it appeared by the bill that Lafarge was not
severally
bound by the bond, but
only jointly bound with Lahens;
that Lafarge received no consideration for becoming an obligor;
that he was not interested in any of the matters in consequence
whereof the bond was given, and was merely a surety therein, and
that he departed this life before the filing of the present bill,
leaving Lahens surviving him, who was still alive. The court below
sustained the demurrer, acting doubtless on the ancient principle
of equity, announced with a clear mention of its grounds by Grier,
J., for this Court in the
United States v. Price [
Footnote 1] that after the death of one
joint obligor (the other surviving) the estate of the one deceased
cannot be pursued in equity unless there was "some moral obligation
antecedent to the bond," the which obligation the court declared
could not exist where the deceased obligor had been but a surety.
To review the action of the court in sustaining the demurrer this
appeal was taken.
Page 82 U. S. 143
MR. JUSTICE DAVIS delivered the opinion of the Court.
It is very clear that the estate of Lafarge is discharged at law
from the payment of the obligation in controversy on the familiar
principle that if one of two joint obligors die, the debt is
extinguished against his representative, and the surviving obligor
is alone chargeable. It is equally clear that in this class of
cases, where the remedy at law is gone, as a general rule a court
of equity will not afford relief, for it is not a principle of
equity that every joint covenant shall be treated as if it were
joint and several. The court will not vary the legal effect of the
instrument by making it several as well as joint unless it can see,
either by independent testimony or from the nature of the
transaction itself,
Page 82 U. S. 144
that the parties concerned intended to create a separate as well
as joint liability. If through fraud, ignorance, or mistake the
joint obligation does not express the meaning of the parties, it
will be reformed so as to conform to it. This has been done where
there is a previous equity which gives the obligee the right to a
several indemnity from each of the obligors, as in the case of
money lent to both of them. There, a court of equity will enforce
the obligation against the representatives of the deceased obligor,
although the bond be joint and not several, on the ground that the
lending to both creates a moral obligation in both to pay, and that
the reasonable presumption is the parties intended their contract
to be joint and several, but through fraud, ignorance, mistake, or
want of skill, failed to accomplish their object. This presumption
is never indulged in the case of a mere surety, whose duty is
measured alone by the legal force of the bond and who is under no
moral obligation whatever to pay the obligee, independent of his
covenant, and consequently there is nothing on which to found an
equity for the interposition of a court of chancery. If the surety
should die before his principal, his representatives cannot be sued
at law, nor will they be charged in equity. These general doctrines
on this subject were presented at large in this Court in the case
of the
United States v. Price, and they are sustained by
the text writers and books of reports in this country and England.
[
Footnote 2]
The authority of the decisions on this subject we do not
Page 82 U. S. 145
understand the appellant as questioning in a proper case; but he
insists they are not applicable here.
His position is, that a statutory obligation like the bond in
question is different in principle, and should be interpreted
differently from a contract made by private parties between
themselves, as the obligees in such a bond cannot direct the form
it shall take, nor elect whether to accept or refuse it. The bond,
which is the foundation of this suit, was given in 1846, under the
order of the Court of Chancery of New York, to stay the proceedings
in an action at law then pending in the Superior Court of the city,
and it is argued, as the statute does not require bonds of this
character to be "joint and several," in legal intendment they must
be joint in form, and all the obligors, therefore, should be
regarded as principals. It is undoubtedly true, as words of
severalty are not employed, that a joint bond is a compliance with
the law, but it by no means follows that a joint and several
obligation is not an equal compliance with its terms. It is
certainly not forbidden, and as the statute is silent on the
subject the fair intendment is that either was authorized, and that
the court had the right to direct which should be given. If this be
so, then it cannot properly be said that the party enjoined had no
voice in the nature or sufficiency of the security to be taken, for
the discretion of the chancellor was, necessarily, to be exercised
in relation to both these matters, if his attention was directed to
them, after both sides were heard. It is quite apparent, if this
discretion had been invoked, that the instrument of security might
have been different; and equally apparent that Lafarge, in case
this had been done, might have been unwilling to assume the
additional risks which a separate liability imposed on him. We must
suppose, in the absence of any evidence on the subject, that he
knew the legal differences between the different kinds of
obligations, and became bound in the way he did because a joint
liability was more advantageous to him. If this was his intention,
it would be manifestly unjust for a court of equity, after the
legal status was fixed by his death, to change the nature of the
obligation which
Page 82 U. S. 146
he executed in order to charge his estate. In the cases in which
equity has treated the obligation as joint and several, although in
form joint, the surety participated in the consideration. In this
case, Lafarge had no pecuniary interest in the litigation which was
enjoined, and derived no personal benefit from the instrument of
writing which he signed, and therefore no good reason can be
furnished why his standing in a court of equity is not as favorable
as if he were surety, without advantage to himself, in the
borrowing of money. In neither case is there any obligation to pay
independent of the covenant. In the one, there is a liability for a
debt; in the other, for a result in an action at law. Both are
cases of contract, for indeed suretyship can exist in no other way,
and we know of no principle of equity by which a contract of
indemnity is to be construed so as to charge an estate and an
engagement to pay money to receive a contrary construction. The
equities in both are clearly equal, and as the estate of Lafarge is
not liable at law, it will not be held liable in equity.
The demurrer to the bill was therefore properly sustained, and
the decree is accordingly
Affirmed.
[
Footnote 1]
50 U. S. 9 How.
90;
S.C., on the circuit, under the name of
United
States v. Archer's Executors, 1 Wall. Jr. 173.
[
Footnote 2]
Story's Equity Jurisprudence §§ 162, 163, 164;
Simpson v. Field, 2 Chancery Cases 22;
Sumner v.
Powell, 2 Merivale 30;
S.C. on appeal, 1 Turner &
Russell 423;
Weaver v. Shyrock, 6 Sergeant & Rawle
262;
Hunt v.
Rousmanier, per Marshall, C.J., 8 Wheat. 212,
21 U. S. 213;
S.C., 26 U. S. 1 Pet.
16;
Pecker v. Julius, 2 P. A. Brown 33, 34;
Harrison
v. Minge, 2 Washington 136;
Kennedy v. Carpenter, 2
Wharton 361; Other v. Iveson, 3 Drewry, 177; Jones v. Beach, 2 De
Gex, McNaughton & Gordon 886;
Wilmer v. Currey, 2 De
Gex & Smales 347;
Waters v. Riley, 2 Harris & Gill
311;
Dorsey v. Dorsey's Exrs., 2 Harris & Johnson 480,
note;
Bradley v. Burwell, 3 Denio 65; Mr. Cooper's Note to
Justinian's Institutes, p. 462, and cases there cited;
Richardson v. Horton, 6 Beavan 185;
Wilkinson v.
Henderson, 1 Mylne & Keane 582;
Rawstone v. Parr,
3 Russell 539.
