bishop v church Dec see Middleton v Pollock ex part Nugee lr Eq Beresford v  Browning lr Eq Kinnaird v Trollope Ch d S c Ves sen and atk quod vide  deposition of a witness be too general he be direct to be examine upon  interrogatory before a master relief on bind misdraw by mistake and a just  demand out of asset will be satisfy in equity though there be no remedy at law  from the nature of the instrument c see post SC Thomas v Frazer Ves burn v  burn ibidem grey v Chiswell Ves et per Lord Eldon c Ves vide also sumner v  Powell Meriv and in devaynes v noble Meriv c supplement Selim Owen and James  church partner borrow from bishop at two different time two sum of pound each  for which they give two bind bind themselves their heir executor and  administrator with condition that if they or either of vesey senior er p they  their or either of their heir executor or administrator c church break off the  partnership and die in bishop die in and his representative Owen become  bankrupt vesey senior bring this bill against the representative of church for  a satisfaction of this debt out of his real and personal asset for plaintiff  this obligation by the intent of the party on the face of it shall be joint  and several as the condition import though through ignorance it be draw so as  to make it joint though the instrument be so frame that remedy may be against  one only if live yet in justice and conscience both be debtor the real  consideration be pay to both both be bind and liable to make satisfaction so  that though there be no legal remedy a court of conscience will if it can  reach the effect of the person borrow and receive the money if a bind be lose  the justice be that the debt shall be pay by the party or his heir though only  a equitable debt then the remedy at law be go by loss of the security see in  Walmsley v child Ves sen Whitfield v Fawcett ibidem and the supplement p nay  further a court of equity will make the surety if there be one pay the money  there be no difference between a principal and surety on the loss of a bind c  c Eq Abr so if form in wrong word quadragenta instead of four hundred c c a  court of equity regard only the lend and will follow the asset of the person  receive if one have pay the whole he will have remedy against representative  of the other which show both be debtor executor though not heir be bind by a  man bind himself in Simpson v Vaughan atk nut and baker partner in trade  borrow on their joint bind nut die baker the survive partner become bankrupt  which be very like this the plaintiff as executor of the bondcreditor prove  his debt receive satisfaction in part and bring a bill against Vaughan as  executor of nut to have the deficiency supply out of his asset the  consideration your lordship go upon be that it be a sum lend to both of which  both have the advantage and a debt arise against both from the nature of the  transaction it be no lie on the partnershipestate in particular because the  plaintiff may have have it against either of they and this court lean against  survivorship and that there be reasonable evidence of fraud or mistake for  baker fill up the bind where a contract be absolute void yet be a contract for  valuable consideration this court have set it up in toto to bind the heir as  well as executor Acton v pierce vern which show how far a court of equity go  to make it bind on heir as well as executor where the bind itself in point of  law bind neither be extinguish by marriage but it bind in equity because it be  a contract and the condition of a bind this court consider as a contract so in  Blundell v Barker p W a bind before marriage to trustee with condition that if  he shall make provision for the wife in pound c he die have devise away his  personal estate and leave a daughter marry against his vesey senior consent  the bill be against his representative to have satisfaction for a customary  share the widow claim satisfaction for that bind as a contract with her it be  hold a good contract on which foundation a court of equity will carry these  thing though void in point of law into execution Even where there be joint  contract either by bind or contract this court consider it bind on each though  one die before in Probart v Clifford atk and Ambl march settlement on marriage  of the son for life on his wife for life to their first c son in tail  remainder over with joint covenant by father and son for themselves their heir  executor and every of they that the jointure be and shall continue pound per  and the father die first after the son death the jointure prove deficient on  the son asset prove deficient the bill be against the father representative  for satisfaction out of his estate for that joint covenant and which be at a  end by death of father before the son the first question be whether or no this  be a joint covenant only and if so whether the son estate shall not be liable  to satisfaction next whether the word and every of they do not make it a  separate covenant your lordship do not determine the question whether joint  but whether joint or not that the father estate be liable on foundation of the  contract between the party and decree accord in primrose v Bromley atk  December Richard mead and two other be joint assignee under commission of  bankruptcy and by the deed of assignment all covenant joint for themselves  their executor and administrator with the commissioner that they will from  time to time get in the effect and estate of the bankrupt and render a just  account of what they their executor and administrator or any of they shall  receive vesey senior er p mead receive the money and die before the other  application be make to the master to prove this debt that mead be liable to  pay this debt thus contract for it be insist that though liable to pay this as  a debt because he receive the money yet it shall be as a simple contract the  question be not whether or no mead be not a debtor for it but whether his  estate be not a debtor for it on the foot of a specialty on exception the  question be two first whether or no this be a joint covenant or joint and  separate from the subsequent word your lordship will not determine that but go  on the other question that it be a debt by specialty these two case be in  point both on joint covenant and where it be deter i that the representative  of the party die shall make satisfaction in these case indeed the heir be not  bind but that make no difference the point be settle by it that though the  bind be at a end in point of law yet on account of the contract the estate  shall pay in the present the heir be mean to be bind and so a part of the  contract in Welsh v Harvey Feb precedent to plaintiff marriage her intend  husband give her a bind execute by himself by which he bind himself his heir  executor and vesey senior administrator to pay her at his death pound he die  and by will give her pound this the executor insist can not be pay for that he  have not asset to pay all the legacy and simplecontract debt and that the bind  be void in law because before marriage which put a end to it she bring a bill  against the personal and real representative for satisfaction out of the real  for what can not be out of the personal asset the question be whether the heir  in equity be bind though in law neither heir nor executor be your lordship  hold that heir be intend to be bind original you will set up this contract  though void in point of law accord to the case in for and strange to say it  will be set up in respect of executor not as to heir the real and personal  asset of church be therefore liable in equity another defence set up be that  though plaintiff may be entitle he have lose the benefit of it by laches that  be uncommon but what be the laches that there be a opportunity of recover this  from Owen when he be able to pay can that rebut plaintiff equity if so it be  incumbent on defendant to show it there be no agreement that Owen will take  this on himself or admission by he that he have partnership effect sufficient  for that each must know he be liable to pay it plaintiff have nothing to do  with the partnership though this may be borrow on the partnership account  bishop be not oblige to call on Owen have two security and there be no  probability of Owen discount it for he be necessitous they shall have call on  he so that the laches be on their side next though church have by will  discharge some debt due to he they can be discharge against creditor but be  mere legacy for if such legatee lie before testator it be lapse and become a  debt again to testator as have be determine for defendant survive executor of  James church bishop be acquaint with this partnership deal with they several  year and in the course of it lend they this on the partnershipaccount both  bind be fill up by himself both be joint and have the word or several add the  interest continue to be pay out of the partnershipaccount down to the last  account before the death of church which be settle and among the sum due from  the partnership these two be reckon on his death the right between his  representative and Owen be that Owen shall keep the whole partnershipstock pay  all the debt due from the partnership for the survivor be to be charge with a  the debt accord to the article and be only to pay the representative of church  his share of the clear residue in there be application to bishop by Mr clive  solicitor to the executor tell he that sufficient be leave of the  partnershipeffects in the hand of vesey senior Owen and particular to pay he  and desire he not to delay receive satisfaction from Owen and that bishop will  either sue himself or let they have the bind to do it in his name with which  bishop do not comply in conscience and equity Owen be to pay all the debt  bishop never apply to the executor of church as liable for interest or  principal or that he suspect the circumstance of Owen he regular receive from  Owen the interest on both bind acquiesce under his be paymaster and beside  deal with he to the amount of pound per and if Owen can not have pay if apply  to bishop shall have apprise the executor and propose to they to call on he it  be unjust to give credit to another to prejudice of a three after the death of  bishop there be a suspicion of the circumstance of Owen and then be  application make to the executor who be tell they be also bind on look into  the bind after the bankruptcy it appear vesey senior er p that in law Owen be  only bind so that no demand can be at law which occasion a bill to be relieve  on equitable ground against that which be the rule of law suggest that it be a  mistake and that in a court of equity it ought to be consider and set up as  joint and several the general question will be whether there be a sufficient  cause for the court to do that take it to be joint in point of law as it be  and the survivor then only debtor accord to the rule in light it be say the  condition that both shall pay make it several but it must be so to save the  penalty if pay by they or either or executor of either the condition be proper  applicable to that and to a joint bind suppose that so intend so that it be  not a new agreement next the construction in a court of equity the proposition  lie down be that all bind joint in point of law be consider as several in  equity but there be never such a determination a court of equity will not  without circumstance extend the agreement of the party will not alter it if  mean that the survivor shall be the debtor so that it can be thus in general  the court never determine it but on circumstance from which it will be  dangerous to draw a general rule Probart v Clifford atk Amb be not the case of  a bind but of a jointcovenant which be determine on this particularity that it  be a express agreement which the court be to carry into execution accord to  the intent of the party which be plain that the father be to be bind several  as well as the sen primrose v Bromley atk go on several circumstance and so it  be distinguish in Simpson v Vaughan where the first question be whether the  court can give further remedy than the law do in oasis of this kind second  whether there be particular evidence to do it there as to the first the court  hold it can not be lie down in every case of a joint bind for Probart v  Clifford be a executory agreement and primrose vesey senior v Bromley depend  on a great many circumstance but as to the next question baker one of the  partner fill up the bind which be either a fraud or mistake to his own  advantage either of which may be a ground to interpose it ought to have be  joint and several if he have do it right another ground be that the money have  come to the benefit of both partner nut who die be considerable indebt to the  partnership if then baker have pay all he will be entitle to satisfaction out  of nut asset for a moiety why therefore shall not the creditor have like  remedy on the reason relief be in that case there shall be none in this the  case of marry woman be not applicable only prove that if a agreement be make  in form of a bind which be not good in law on account of the marriage yet if  under hand and seal it be a specialty and this court will substantiate it  though in form of a bind but here be no agreement which can be go upon and the  bind set aside where a bind be lose the court will set it up and supply the  loss and will correct a plain mistake but it must appear and a ground for it  there be no evidence of mistake here No imposition because fill up by obligee  himself it be hard to account for the same mistake happen twice at a distance  of time probable the bind be adapt to the nature of the article of partnership  which bishop know it may be desire to be joint on that account there be no  three person concern in the draw that can be now examine so that it be enough  that it be probable the court be not to presume without any evidence that when  two bind be adapt to such article and account annual take it be a mistake  which bring it to the ground of equity and that shall be allow its full weight  but be answer and rebut by a equity of the same sort on defendant part the  equity insist on be that both have have the benefit the money come joint  therefore both be liable in justice to make satisfaction and that if one have  pay it for the other he or his representative will have a right to come on the  representative of the other for a contribution and a common creditor shall  have the same equity allow full weight to that argument where there be no  answer to it all the principle of it fail when a equity of the same kind arise  against bishop he have notice of money leave in the hand of Owen for the very  purpose of pay these bind yet lie by with his eye open not put the executor on  their guard he receive the interest from and give subsequent credit to Owen  and ought therefore to suffer within the rule on bill of exchange if the  executor pay it it must be pay twice over first in the account with Owen next  because not get out of his hand if in point of law the executor of church be  liable there be a difference between that equity which rebuts a vesey senior  equity and that which be sufficient to set aside a legal right but the law  happen to be with the executor and conscience also the account be offer to be  read for defendant but not allow vesey senior er p Lord chancellor if it stand  bare on the laches of bishop and on that from which a little collusion with  Owen may be infer I think it be a considerable defence make but after the  death of bishop the representative of church think themselves liable and apply  to have these bind put in suit this circumstance create a doubt in my own  determination therefore I shall be glad to know what bishop answer to Mr clive  defendant solicitor on his application he have be examine for defendant and  the answer be general that he can not prevail on he to do it so that I will  decree clive to be examine on interrogatory as to that unless the plaintiff  oppose it for in that case I will give my determination on the evidence before  I the court have sometime direct a witness to attend personal where they have  have a doubt and this I own be a exceed doubtful case there be one thing I  will give my opinion upon now as to the question make in point of law this  bill be for satisfaction of a duty out of asset see Thomas v Frazer Ves burn v  burn ibidem grey v Chiswell Ves and sumner v Powell Meriv which the plaintiff  may do either on a debt due in point of law and for which there may be a legal  remedy or where equitable on a loss you may come into equity notwithstanding a  remedy at law but a affidavit of the loss be necessary Ves sen for though in  general a legal demand can be turn into equitable yet if a demand be make out  of asset he be entitle to a account out of the asset here and then this court  will not put he to sue double in one court to have account of asset in the  other satisfaction but give remedy here the first thing mention be to make  these bind still a legal demand against the asset of church now if that be so  the plaintiff will be at liberty and have a option to proceed at law for this  debt or in equity but it will not be now insist that the plaintiff can pursue  by action at law on these bind it be on the face of it mere joint then the  severance in the condition ought to be take into construction of the  obligation and make the obligation joint and several the first answer give to  that be that the condition be only if it be perform a excuse against the  penalty so it be in truth but that be not a vesey senior sufficient answer to  the equity of the case though it be in point of law the joint obligation must  be construe with that rule the law lie down and the consequence of it that the  remedy survive by death of one yet still it be a joint security by they that  one or other of they shall do the act suppose a bind by two one as a principal  the other as surety with a condition which be the common case that if the  principal pay the money the obligation be void it can be construe to be intend  that the principal only be bind still both be bind but accord to the  construction the law put on that obligation that the principal shall do the  act but if not it be on both these word therefore which may amount to a  severance as to the original contract yet can enable plaintiff to declare on  this as if a joint and several bind and it be immaterial to leave plaintiff to  take his chance whether he can recover at law but as the plaintiff insist not  on it it be a case in equity and turn on equitable circumstance then the  plaintiff must come as from a pure fountain must show himself not to be guilty  of any laches much less collusion turn to the prejudice of the other side  which may be strong enough to rebut that equity set up beyond what the rule of  law admit though not sufficient to get the better of the legal which bring it  to the evidence and that be uncertain from the not know what answer be give on  the application by clive for it may be a general acquiescence by both but that  be very much in the dark I declare therefore that I do not think fit to  proceed to a determination of this case till he be examine before the master  on interrogatory as to the application mention in his deposition to be make by  he to demand the money due on these bind of Owen or to give leave to put the  say bind in suit in bishop name against Owen and what answer be give by bishop  and what declaration with liberty to the plaintiff also to interrogate and  afterward either side may apply to have it further hear see Ves sen Reg lib a  fol vesey senior er p