Robert Cooper Grier

“ 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. ”

“ If he contracts jointly with his principal, it is a legal consequence known to all the parties, that his personal estate will be discharged in case he should die before his principal. Such being the law, it may be considered as a part of the written condition of the bond. And equity will not interfere to extend the liability, as against his estate, on the ground that such discharge arises from the mere technicalities of the law. ”

“ 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 It no longer exists as a security, being superseded, merged, and extinguished in the judgment, which is a security of a higher nature.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. ”

“ It is true that, in cases of fraud, accident, or mistake, equity will relieve as well against the surety as the principal. Thus, in case of a lost bond, equity will set it up against a surety, or where a bond has been made joint, instead of joint and several, by mistake of a scrivener ”

“ 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. ”

“ Shryock. The decree of the chancellor, who had granted relief to the obligee against the executor of the deceased obligor, the survivor being insolvent, was reversed in the Court of Appeals of Virginia. ”