the purpose of the parties themselves to have given to them. Thus, where one of two persons to whom a joint loan was made by mistake filled up the bond given to secure it as a joint, instead of a joint and several bond, Lord Hardwicke, on the ground of the mistake, relieved the obligee by effectuating his claim against the assets of a deceased obligor (a). So, where a partnership firm, indebted on simple contract, intended that a bond should be given for the debt by which each should be separately bound; and, in pursuance of such intention, a bond was, through mistake and ignorance of the parties, filled up as a joint bond, and was executed only by the senior partner in the name of the partnership firm, but with the privity of the other partners who were present at the execution; the creditor was held entitled, as against simple contract creditors, to come in as a specialty creditor upon the estate of any of the partners (b). And in all cases in which a security is, by mistake, executed as a joint, instead of a separate security, or as a separate, instead of a joint security, it does not affect the equitable right of the creditor to consider his debt separate or joint, according to the real intention of the parties (c). Relief of this nature has also frequently been granted against the estate of a deceased partner, where a joint security only has been given for a partnership debt contracted in the way of trade, the legal remedy upon which, by the death of one, survived against the other alone, the ground of the equity being, that quá partners they were each of them liable for the whole debt; and therefore, as a several antecedent liability existed, independently of the instrument by which the debt was secured, the right of the creditor to enforce it severally ought not to be impaired by the circumstance of a joint security only having been taken. This species of relief was first administered in an early (a) Simpson v. Vaughan, 2 Atk. 31. See also Primrose v. Bromley, 1 Atk. 90. (b) Burn v. Burn, 3 Ves. 573. (c) Thomas v. Fraser, Ib. 399. In re Bate, Ib. 400. n. In re Freeman, Ib. case (a); in which one partner had given a joint promissory note for money borrowed by him on the joint account, and the other partner dying, the holder of the note brought a bill to have satisfaction out of the estate of the deceased, and it was decreed to be proper in equity to follow his estate for satisfaction, because the note was given for a partnership debt. And in a case before Lord Hardwicke, in which similar relief was prayed, though he doubted a little at first, whether it sufficiently appeared that the security was intended to be separate as well as joint, yet when it was ascertained that the money had been borrowed in the course of a partnership dealing, he thought 'the equity was perfectly clear (b). So, in Jacomb v. Harwood (c), it is evident Sir John Strange was of opinion, that the estates both of the deceased and the surviving partners were liable to the payment of a joint note, though it was not necessary to resort to that equity in the particular case, inasmuch as the surviving partner, as the executor of the deceased partner, had executed a mortgage to secure the debt, which it was held to be within his competency to do (d). The same principle had been before acted upon by Lord Chancellor Parker, in a case in which a creditor held the joint bond of two partners, and upon a dissolution of the partnership, it was agreed that all the joint bonds should be discharged by one of the partners, to whom afterwards an application for payment was made by the creditor, when it was stipulated between them that the interest upon the bond should be increased, and some of the increased interest was in consequence paid. The latter partner having subsequently become bankrupt, it was held, that the creditor had an equitable claim upon the assets of the other partner who had died, notwithstanding he had proved his debt, and received a dividend (a) Lane v. Williams, 2 Vern. 277, 292. (b) Bishop v. Church, 2 Ves. sen. 100, 371. S. C. reported on a different point in 3. Atk. 691. (c) 2 Ves. sen. 265. (d) See Vulliamy v. Noble, 3 Meriv, 614. under the commission against the bankrupt partner (a). So, where a person kept a cash account with three merchants who were in partnership, and they becoming indebted to him, a joint bond signed by one partner only, in the name of the partnership, was delivered for the balance due, after which one partner withdrew from the partnership, and another died, of which events, and of the introduction of new partners in their places respectively, the obligee had express notice sent to him; but he nevertheless continued to correspond with the new firm, in respect of the cash balance in their hands; Sir Thomas Plumer declared that the bond, though in its form joint, must in equity be taken as the joint and several bond of all the partners, and, consequently, that the representatives of the deceased partner were liable to make good the money due on it (b). But every joint covenant is not to be considered in equity as the several covenant of each of the covenantors; for where it is purely matter of arbitrary convention, growing out of no antecedent liability in all or any of the covenantors to do what they have thereby undertaken, and it is not pretended that there was any mistake in drawing the deed, or that there was any agreement for a covenant of a different sort, the extent of the covenant can be measured only by the words in which it is conceived. Therefore, where the executor of a deceased partner, instead of winding up the partnership concern, and dividing what might remain after satisfying all claims upon it, made an arrangement with the surviving partners, by which he was immediately to receive what was estimated to be his testator's share of the joint estate, he releasing all interest in the residue to the other partners, from whom he obtained a joint covenant of indemnity against any claims upon the firm; it (a) Heath v. Perceval, 1 P. Wms. 682. S. C. 1 Stra. 303. was determined that as no equity existed which could have entitled him to demand from the other partners such an indemnity, there was not a ground on which any other than its legal operation and effect could be ascribed to the covenant (a). (a) Sumner v. Powell, 2 Meriv. 30. APPENDIX. No. I. 6 GEO. 4. c. 91. An act to repeal so much of an act passed in the sixth year of his late Majesty King George the First, as relates to the restraining several extravagant and unwarrantable practices in the said act mentioned; and for conferring additional powers upon his Majesty, with respect to the granting of charters of incorporation to trading and other companies. [5th July 1825.] WHEREAS by an act passed in the sixth year of the reign of his late Majesty King George the First, intituled "An act for better securing certain powers and privileges intended to be granted by his Majesty, by two charters, for assurance of ships and merchandizes at sea, and for lending money upon bottomry, and for restraining several extravagant and unwarrantable practices therein mentioned," it was enacted, that after the twenty-fourth day of June one thousand seven hundred and twenty, all and every the undertakings and attempts in the said act described, and all other public undertakings and attempts, tending to the common grievance, prejudice, and inconvenience of his Majesty's subjects, or great numbers of them, in their trade, commerce, and other lawful affairs; and all public subscriptions, receipts, payments, assignments, transfers, pretended assignments and transfers, and all other matters and things whatsoever, for furthering, countenancing, or proceeding in any such undertaking or attempt; and more particularly the acting or presuming to act as a corporate body or bodies; the raising or pretending to raise transferable stock or stocks; the transferring or pretending to transfer or assign any share or shares in such stock or stocks, without leave or authority, either by Act of Parliament or by any charter from the crown, to warrant such acting as a body corporate, or to raise such transferable stock or stocks, or to transfer shares therein; and all acting or pretending to act under any charter formerly granted from the crown, for particular or special D D 1 |