2. The result of this is:--
1. The bond being merged in the joint judgment, the plaintiffs, up to the time of its rendition, had 'a remedy in law.' That remedy continues against the survivor. Hence no equity jurisdiction.
2. If it were that an obligee, who has obtained a joint judgment against all the obligors, might afterwards sue them or their representatives severally, the plaintiffs have a 'remedy at law,' and cannot invoke the aid of a court of equity. The basis of the bill is, that the plaintiffs have no remedy at laws.
3. On the rendition of the joint judgment, Mifflin and Archer stood in the relation of joint contractors or judgment debtors, with all the incidents thereto appertaining in law and equity. Among them are,--
1. Acceptance of a judgment against one; a discharge of the others.
2. Release of one discharges all.
3. The death of one joint debtor discharges his estate (except by statutory lien on real estate, which is not the case here), casts the burden on the survivors, and the remedy at law is only against the survivors.
4. Other matters occurring after the rendition of the judgment (see propositions which follow), discharged the right against the estate of Joseph Archer, and for want of right there was no remedy either in law or equity.
At law, the death of Joseph Archer, a co-debtor in the joint judgment, after its rendition, discharged his assets, and no action at law lay against his executor, upon the bond, being merged in the judgment, or upon the judgment itself, the only proceeding at law being against the surviving defendant therein.
1. The plaintiffs' bill impliedly assumes this as to the remedy, or otherwise they could not come into equity at all.
2. The plaintiffs' right in law against the assets of the decedent is ipso facto by the death defeated. And to this point are all the authorities.
Per Kennedy, J.:-'That one of two joint debtors dying is thereby discharged, both in person and estate, at law, from the payment of the debt, is too well established to be controverted.' (Only exception, case of special lien on lands, post.)
U. States v. Cushman, 2 Sum. 310; Reed v. Garvin's Ex., 7 S. & R. 357; Lompton v. Collingwood, 4 Mod. 315; 4 How. 77; Kennedy v. Carpenter, 2 Whart. 364; Towers v. Moor, 2 Vern. 99; Foster v. Hooper 2 Mass. 572; Lang v. Keppele, 1 Binn. 123; Smart v. Edson, Lev. 30; 2 Saunders, 51, 148, a, note 4; Thomas Raymond, 26; 1 Sid. 238; Stat. West. 2d; Stiles v. Brock, 1 Barr, Pa. St. Rep. 215, and all the cases collected therein as to special lien on malty by judgment, created by statute.
Note.-There is a class of cases which do not interfere with this proposition, and are clearly distinguishable. These are to the effect, that, where a joint judgment is obtained against more than one defendant,-and by statutes in England and many of the United States, such judgment is a specific lien on the lands or realty of all the defendants, for various periods,-in such case a scire facias may be issued, to have execution of the lands of a deceased defendant in the hands of executors, terre-tenants, heirs, or devisees, by force of the special statutory provision. This may be coupled with a scire facias, to have execution against the goods of the surviving defendants; but the personalty and general assets or estate of the deceased defendant are discharged by his death.
In the present case there was no such specific statutory lien. There was no real estate of Joseph Archer deceased to bind by lien by the judgment in which he was a joint defendant at the time of his decease.
This is a case purely of general assets, and personalty unfettered by any statutory lien, and wholly subject to the general rule, as set forth in this proposition.
In equity, the right and remedy are extinguished, as well as at law, against the estate and assets of Joseph Archer deceased, by reason of his (a joint debtor and surety's) death.
1. In general, if the right against decedent's estate is discharged at law, it must be in equity, because equity creates no other right in favor of a claimant, or liability on the part of those against whom the claim is made, than exists by general law. The distinction between law and equity merely applies to the remedy or its form, and not to rights or duties.
2. But what is conclusive, Joseph Archer was a mere surety, in no wise personally benefited by the consideration of the original transaction, bound only by the original bond and the judgment thereon, who was under no moral obligation to pay; there being no question (in the sense of equity) of accident, fraud, or mistake, and the legal liability of his estate was gone.