United States v. Price. 9 H. be a bar to an action against another; but if two are bound jointly and severally, and the obligee has judgment against one of them, he may yet sue the other." The case of Sheehy v. Mandeville, 6 Cranch 253, in this court, although sometimes criticized and doubted in other courts, goes no further than to decide, that, where one partner is sued severally on a joint or partnership contract, and judgment obtained against him, it is no bar to a suit against the other, because this contract was not merged in the judgment, and because the first judgment was founded on a several, not a joint promise. But these cases give no countenance to the assertion, "that a joint judgment is not per se a satisfaction of a joint and several bond." The law on this subject is too well settled to admit of a [*94] doubt, or require the citation of authorities, that, if two *or more are bound jointly and severally, the obligee may elect to sue them jointly or severally. But having once made his election and obtained a joint judgment, his bond is merged in the judgment, quia transit in rem judicatam. It is essential to the idea of election that a party cannot have both. One judgment against all or each of the obligors is a satisfaction and extinguishment of the bond. It no longer exists as a security, being superseded, merged, and extinguished in the judgment, which is a security of a higher nature. The creditor has no longer a remedy, either at law or in equity, on his bond, but only on his judgment. The obligor is no longer bound by the bond; but by the judgment, it has become the evidence of his indebtedness, and the measure of his liability. 2. The second proposition repudiates the doctrine of courts of equity, that, where a surety is not bound at law, he will not be made liable in equity. It does not controvert the well settled principle, that, where the bond is joint only, the personal assets of the surety will be discharged by his death, but asserts that his conscience is affected because his bond was originally both joint and several. But if it is not against conscience that the estate of a surety should be released by his death, when his undertaking was originally joint only, it is hard to apprehend how it becomes so, when the obligee, having a choice of both securities, elects to hold the surety bound jointly, and not severally. If a surety is under no moral obligation to pay, where he is not legally bound by his contract, his conscience cannot be reached, when the law discharges him from his obligation. The law, as we have before stated, makes a part of every contract; and in case of a joint and several bond, the contract of the parties is, that the estate of the surety shall be discharged by his death, if the obligee elect to hold him jointly, and not severally liable. So that, in the present case, it United States v. Price. 9 H. is the obligee who is acting against conscience, because he seeks to hold the surety liable, contrary to their contract. "No case can be found in the books," says a learned author, (Pitman on Principal and Surety, p. 92, note,) "where equity has varied the legal effect of the instrument so as to charge the surety." To give a remedy against the estate of a surety after it is discharged at law, and by the election of the obligee, would be varying the legal effect of his contract in a most material point. The cases cited in support of the second proposition will be found on examination to have no bearing on the point now under consideration. They are too numerous to be severally noticed. *They may all be found collected in 1 Story's Equity, § 162, [* 95 ] in note, commencing with Simpson v. Vaughan, 1 Atk. 31, and ending with Thorpe v. Jackson, 2 Younge & Collyer, 553, and Wilkinson v. Henderson, 1 Mylne & Keen, 582. They chiefly refer to cases of partnership, and other joint debtors whose liability at law is joint only, but equity administers relief as against the estate of the deceased partner or joint debtor on account of the moral obligation of each to pay the debt, and because they have received a benefit from the transaction. The doctrine of these cases is clearly stated by Sir William Grant, in the case of Sumner v. Powell, 2 Merivale, 36. "Where," says he, "the obligation exists only in virtue of the covenant, 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 there all the partners have had a benefit from the money advanced or the credit given, and the obligation of all to pay exists independently of any instrument by which the debt may have been secured; so, where a joint bond has been in equity considered as several, there has been a credit given to the different persons who have entered into the obligation. It is not the bond that first created the liability." "It is for this reason," says Mr. Justice Story, (Equity Jurispru dence, § 164,) "that equity will not reform a joint bond against a mere surety so as to make it several against him, on the presumption of a mistake from the nature of the transaction." When an obligee takes a joint and several bond, he has nothing to ask of equity; his remedy is wholly at law. If he elects to take a joint judgment, he voluntarily repudiates the several contract, and is certainly in no better situation than if he had originally taken a joint security only; equity gives relief, not on the bond, for that is complete at law, but on the moral obligation antecedent to the bond, when the creditor could have had no remedy at law. United States v. Price. 9 H. An obligee who has a joint and several bond, and elects to treat it as joint, may sometimes act unwisely in so doing, but his want of prudence is no sufficient plea for the interposition of a chancellor. Nor can the conscience of a mere surety be affected, who, having tendered to the obligee his choice of holding him jointly or severally liable, has been released at law by the exercise of such election. The decree of the circuit court is, therefore, affirmed. [*96] *M'Lean, J., and Woodbury, J., dissented. WOODBURY, J. The leading question in this case is, whether, after the recovery of a joint judgment on a joint and several bond, and the death of one of the obligors happening, who was a surety, a court of equity will sustain a remedy against his property in the hands of his executor. The safety of the government, having such numerous sureties on official bonds, depends so much on their liability in all proper cases, that the technical discharge of them on objections not reaching the merits, is a great and growing evil. The public, too, in the individual dealings of many on the strength of the security furnished by others than the principal debtor, have a deep interest in preventing their discharge without a full satisfaction of the debt. I must be excused, then, for stating some of the reasons and authorities why it is not in my power to concur in the judgment just pronounced, discharging the executor of the surety to the government, without making any payment whatever of the debt. It is conceded by me, that, in case of a debt entirely joint, if one of the obligors die, it is a rule in a court of law, that "his executor is totally discharged, and the survivor or survivors only chargeable." 2 Howard, 78; 2 Sumner, 368; Bac. Abr. Obligations, D. 3; Erwin v. Dundas, 4 Howard, 78; 2 Wharton, 361, in Kennedy v. Carpenter, and cases cited there; 2 Harr. & Gill, 313; Rogers v. Danvers, 1 Mod. 165; 1 Freeman, 127. This, however, is the rule at law, and is not, in all cases, the same in equity. Even at law, the objection is purely technical, and arises only on account of the want of a remedy there against the estate of the deceased, and not because the debt itself has been satisfied; and so strong is the justice of still enforcing it at law without a resort to equity, that the statutes of many States have expressly made provision for collecting a debt against the estate of all joint debtors when it has never yet been paid by either. See United States v. Cushman, 2 Sumner, 312, and 2 Gill & Johns. 316. But in time, without any statute, courts of chancery gave relief in this class of joint contracts by allowing a remedy in certain instances, United States v. Price. 9 H. and though this was at first refused, 2 Brown, Ch. 276, and was granted at last with some hesitancy, it has become the ordinary practice to allow it, when the original indebtedness or liability, though now in form joint, was on any account, or in any just view, general no less than joint. 1 * Indeed, without relying on this distinction, the lord [97] chancellor in Primrose v. Bromley, 1 Atkyns, 90, states a case where he decreed such relief, to a certain extent, on a joint bond against the estate of the deceased. He observes: "There was a case which I determined in this court, where there were two persons jointly bound in a bond, one of the obligors died; and to be sure, at law, it might have been put in suit against the survivor; but, as I thought it extremely hard, I decreed the representative of the co-obligor should be charged pari passu with the surviving obligor in the payment of the bond." But it seems uniform to grant such relief by a new remedy in chancery against the estate of the deceased whenever, as here, the original contract was several as well as joint. Towers v. Moor, 2 Vern. 99; 1 Pet. 16, and cases post; Rogers v. Danvers, 1 Mod. 165; Burr. 1190; Williams on Executors, 809, 811; 1 Freeman, 127. I doubt whether a single case to the contrary exists in either the American or the English books. One ground of relief, where the original contract was several no less than joint, is the admission in the undertaking, that each signer and his estate should be separately liable for the whole to the obligee, so far as regards him, and hence raising in equity a liability to do this separately by his property after death, because the difficulty in any remedy to enforce it at law is merely technical, and the equity or conscience in paying an unsatisfied promise and debt stands still unimpaired. See further cases. United States v. Cushman, 2 Sumner, 426; 1 Merivale, 563; Sumner v. Powell, 2 Merivale, 30; Devaynes v. Noble, 2 Russ. & Mylne, 506. The chief difficulty in this class of cases is to settle whether the contract was several as well as joint. It is the language of the contract, when several, which is the most decisive test as to its severalty. Sir William Grant says: "When the obligation exists only by virtue of the covenant, its extent can be measured only by the words in which it is conceived." 2 Meriv. 36. A similar reliance on the words used being joint only, and not several, appears in Harrison v. Field, 2 Wash. 141. The court observes, too, in Sumner v. Powell, 1 Turner & Russell, 425: "There can be no doubt in the world that, if this covenant had been a joint and several covenant, it would have done; and, therefore, any evil which might otherwise arise out of the case may be United States v. Price. 9 H. avoided by the addition of a single word." In Towers v. Moor, 2 Vernon, 99, it is said: "Where two are jointly bound, and [*98] one dies, you must sue the survivor, and cannot maintain * an action against the executor or administrator of him that is dead; but, if bound jointly and severally, it is otherwise." So in Lechmere v. Fletcher, 1 Crompton & Meeson, 629, there had been a contract wholly joint, and a judgment on it jointly; but one of the promisors made also a several agreement to pay the amount, not as a substitute, but as an additional undertaking; and a remedy in equity against the representative of this last promisor was sustained on that separate agreement. But without pursuing this point further, it is placed beyond doubt, by the numerous cases hereafter cited, that courts of equity will give relief, though the contract produced is on its face joint, if it be proved that it was originally agreed to be joint and several, and by mistake or ignorance was written joint alone. It becomes necessary, then, to consider next the only pretence urged for taking this case out of the general rule, namely, that a joint judgment had been subsequently recovered here against all the obligors, and that the deceased was a surety. 1. It has been much pressed here that the remedy in this case is now at law only on the joint judgment, and hence should not be enforced severally in equity. But it is conceded that the original liability was joint and several; and it is laid down in some books that a several action at law could probably have been sustained here on the original demand, after the joint judgment. It has been adjudged by this court that, on a joint and several promissory note, an action and judgment against the signers severally are no bar to a joint action against them. Sheehy v. Mandeville, 6 Cranch, 253; 6 Coke, 44; 13 Mass. 148. And though a joint suit on a joint and several promise is a bar to another joint action on it, Higgens's case, 6 Coke, 45; Gilman v. Rives, 10 Pet. 298, it is thought by Judge Story, after much deliberation and research, to be no bar to a several suit and judgment afterwards on the original joint and several promise. United States v. Cushman, 2 Sumner, 312, semb., and 427; 1 Story's Eq. Jur. § 164 and note, and § 676; 7 Serg. & Rawle, 355; Lechmere v. Fletcher, 1 Crompt. & Mees. 623. Sed cited contra, 13 Serg. & Rawle, 288; 2 Watts, 204; 7 Serg. & Rawle, 354; 2 Serg. & Rawle, 280; 9 Watts & Serg. 88; United States v. Thompson, 1 Gilman, 622; 1 Pet. 16; 2 Wash. 136. On an examination of the opposing cases which have been cited, it will be seen that the weight of authority is against the |