creditor to demand, from one or other, the with his money was the same. the bormoney due, in the event which happened, rower indeed, obtaining what he wanted the distinction exist, some reason for it may and what he could not have obtained be and ought to be adduced. without the suretys kind office, in proThe only specious argument for the dis- curing the loan, is indebted to that benetinction, which hath occurred to the com- factor doubly,-owes the 'debt immense of mentator, after long, frequent, diligent endless gratitude,' and is moreover bound investigation, is founded on compassion to indemnify him; but the right of the for an innocent surety, as he is called,- lender to demand from them, and their obliimproperly called, if we regard the etymol-gation to repay to him, the money borogy of the epithet, and the consequence to the creditor pretended to be sanctified by it. an innocent man is he, by whose act, or by whose omission, another man is not hurt; but the creditor, losing the money, which he had lent, and the loss of which he would not have hazarded, if the surety had not solemnly agreed to be sponsor for the borrowers sufficiency, is hurt by an act of the surety in procuring the loan, and by his omission to guard against the loss, if his representa- 284 tive be discharged from responsibility.

However that may be, compassion ought not to influence a judge, in whom, acting officialy, apathy is less a vice than sympathy.

The creditor may have mercy upon his necessitous debitor, and forgive him the debt, incurred by borrowing money to support a family, may be content with less than he might rigorously clame from a surety, upon whom the debt of an insolvent falls. such charity and liberality in the creditor himself are commendable. but when he exacts his dues, the judge cannot constitute himself the creditors almoner, or the dispenser of his bounty. the judge, by the eagerness, which his yearnings excite, to divert the burthen impending on a surety, ought not to be transported so far as to forget, that his charity and beneficence ought to begin at home; that his own purse, not the purse of another man, is the source from which the relief he would afford should flow; and that, whilst he spares the store of a wealthy surety, he may be taking the bread out of the mouths of a creditors starving family. of the cases which can be put, such exoneration of the surety seemeth, in all unjust, arbitrary, oppressive, and, in some, cruel. *The distinction, now under consideration, is oppugned by principles both of law and equity, according to them, the right to demand, and the obligation to make, specific restitution, or vicarious satisfaction, originating by contract, are complete, either, first, by an act of one party beneficial to the other, and performed at his request, or, secondly, by an act of one party detrimental to himself, performed at like request of the other party.

283

The merits of the party performing the acts, in both cases, are equal in legal estimation, nor do the principles of equity teach us to exalt the merit in one above that in the other, or to construct tables for graduating the merits in either of them.

Whoever used the money, or in whatever manner he used it, or whether he threw it away, the merit of the lender was the same, because his detriment in parting

rowed, do not depend upon, and cannot be magnified or diminished by, the right and obligation existing between them, either in law or equity.

When the cause was heard before the high court of chancery, the argument, in support of the distinction, now irrevocably established, consisted, not of reasoning on the subject but, of quotations from, and references to, authorities, (f) of which *kinds of argumentation the latter. is generaly preferred, because it is not only much easier, but, more influential, than the former.

Of the authorities, quoted by the defendents counsel, that upon which he chiefly relied, which was not less satisfactory than the other, and the sense of which is trans

(f) Sentences, exhibited sometimes in print, and enshrined, at other times, in MSS, of men in England, who, after inauguration by the coif, with the pageantry and grimace attending that ceremony, called by writs, or commissioned by letters patent, are mounted on the one bench or the other, at of the rolls, or who had received the great seal from Westminster, or who had been appointed masters the hands, after kissing them, of his or her sacred majesty, with the titles of lord keepers or lord chancellors, the sentences are called authorities, and are so respected that when a thing is said to be just or unjust, the speaker, who is required to prove it. in like manner as some men, not long ago, thought nothing necessary to prove a physical truth more than to shew that it had been affirmed by Aristotle, some where or other in his works, supposeth the justice or injustice of the thing in question, decisively proved, if he can shew it to have been declared to be just or unjust by some lord chief baron, lord chief justice, or one of their associates, or by his honor the master of the rolls, or by some lord keeper or lord chancellor, when one of these sentences, carried before the house of lords, is affirmed or reversed, the matter is then supposed to have been examined with extreme severity, and like subjects tortured in the experimentum crusis, to be incapable of further enucleation. these affirmations and reversals, by those judges in appeal, in that country. at all times after bear the stamp of infallibility, to deny or dispute which is a dangerous heresy; for, in 1697, the court of kings bench having given a judgment, inconsistent with a determination of the house of lords. their supremacies, much offended. summoned the chief justice to give his reasons for the judgment. and when he refused to do so, threatened him with a commitment to the tower. reports by R. Raymond. 1 vol. p. 18. in numberless cases, and, among them, even where the question is, what was the meaning of a mans words in his testament: decads of heavy, huge, unwieldly. folio volumes, attended

by a suitable number of quartos and octavos, are introduced. every one pretended to contain the report of a case in point. the authorities appear sometimes to jarr, and, when they do so, the english judges seldom fail, because it is very much their wish. to reconcile them. when that is done, every one seems to be satisfied, but whether the authorities can be reconciled with common sense, often more difficult than reconcilement of them with another, is rarely thought worth inquiry. the superstitious veneration from them even in America, is so deeply rooted, that the man who can rationaly expect he shall live until it is eradicated, ought to have antediluvian stamina.-Note in edition of 1795.

cribed almost literaly into the opinion of the court of appeals, is this case of Ratcliffe versus Graves et alios, in Vernon's reports 1 vol. p. 196.

loss of the bond.) the administrator saith by his answer that he hath no assets. Upon hearing the cause, it was directed to a trial, whether the surety had sealed and delivered 'Walter Ratcliffe, plaintiffs father, hav- the bond; and a verdict had passed against ing made his will, and plaintiff and his the surety, (viz.) that he had sealed and brother John executors and residuary lega- entered into the bond. and the cause comtees, and they being infants at their fathers ing back to this court, and the plaintiffs death, administration with the will annexed counsil praying a decree for the plaintiffs during their minority was granted to Eliz- debt against the surety, serjeant Fountain abeth Ratcliffe their mother; and the pre- (not of counsil on either side) said it was rogative court upon granting the said doubtful whether equity should in this case administration took the usual bond from the bind the surety, who was not obliged in administratrix, in which the two defend-law, but in respect of the lien of the bond; ents the Heathers were bound, as her sure- and that being lost and the surety having ties. the plaintiffs brother being dead, and no benefit by (nor consideration for) being having made his will and plaintiff execu- bound, he thought equity after so long a tor, he now brought his bill for an account time should not charge the surety, the masof the testators personal estate, and as to ter of the rolls said he would see to moderthe defendents the sureties, it was sug-ate and mediate this matter between the gested that by fraud and covin, they had parties; in order to which, he was several got up their said bond, and had procured insufficient security to be accepted by the prerogative court in the room thereof. but the lord keeper, upon the first opening of the matter, declared he would not charge the sureties further than they were answerable at law; and dismissed the bill as to that part.'

Upon this case but few observations can be made, because the man who determined it hath not condescended to give a reason for his determination, not only would give no reason, but, interrupted a discussion, turning a deaf ear, when the matter was first opened, to everything which 285 could have been *urged against, and which might have prevailed upon him to repudiate, the opinion, to which he had been wedded perhaps overfondly. the commentator, when this authority was quoted on another occasion, ventured to affirm, that such a hasty dogmatical, abrupt depulsion of the question, rather than decision, which ought always to be preceded by mature deliberation,-a declaration that he would not charge the sureties further than they were answerable at law, and this, for any thing appearing to the contrary, only because he would not charge them, as if the will of this lordly judge, like the princely sic volo sic jubeo, were law,-deserveth not to be classed among the responsa prudentum; --and moreover ventured to affirm, that it is intitled to less respect than one of the cases which are called anomalous, not only deviating from general principles, admitted universaly to be the foundation of resort to the court of equity for relief, where the party applying for it is remediless at common law but, contradicting those principles where they have been recognized and exemplified in particular cases, not rationaly distinguishable from it; in proof of which, besides the cases herein before adduced, by way of examples, let a reference be to the case of Underwood against Staney, reported in chancery cases, p. 77 which was thus:

'The obligee in a bond of twenty years old exhibits his bill against the administrator of the principal and the surety (upon

times attended by the plaintiff; and the defendent making default, he decreed for the plaintiff. and afterwards the cause was, upon a case made, brought before my lord chancellor, who was of opinion with the master of rolls, and decreed it for the plaintiff. it was in the debate of this case, said, that if a grantee in a voluntary deed, or an obligee in a voluntary bond, lose 286 the deed or bond, they should have *remedy against the grantor or obligor in equity. tamen quaere. but if so, no mistake in the principal case, where the bond was for money lent; and though the surety had no advantage, yet the obligee had parted with his money, and loss is as good a consideration for a promise, as benefit or profit.'

This case may be a match at least, if not an overmatch, for that in Vernon. neither of them states any reason for the decree. the case in Vernon was indeed determined a few years after the other; but, to compensate for this, the determination in the earlier was by his honor the rolls, and his lordship, the chancellor; in the other, by his lordship the keeper only; so that here are two judges (one of them not a lord indeed) to one; that in Vernon was upon the first opening; that in the other was upon a case made brought before my lord chancellor, and therefore possibly, after deliberation. perhaps neither of them ought to be of oracular authority further than they are reconcilable with the principles of justice. and the one in the chancery cases is thought reconcilable with those principles.

If its authority be allowed, it is, in forensic phrase, a case in point, unless between a loss of the surety's bond and the surety's death in the lifetime of the principal debtor, by which events the obligees were deprived of their remedies at common law, be such a difference as will, in equity, justify a decree for the obligee in one case, and a dismission of his bill in the other

case.

Judges, whose understandings elaborate erudition hath polished and recondite science hath illumined, may be able to dis

cover such a difference. the commentator | when they encounter and cross one another, acknowledgeth such a difference to have in any case, it be understood which the law eluded his acumen ingenii. holdeth worthier and to be prefered; and it is in this particular very notable to consider that this being a rule of some strictness and rigor doth not, as it were, its office, but in absence of other rules which are of more equity and humanity.'

That author in the same tract hath inance of an obligation praeexistent, serted this rule, numbered 9, quod remedio *upon which an action at common destituitur ipsa re valet si culpa absit, to law is maintainable, would create a which are subjoined these paraphrastic new obligation, the former being discharged. terms: 'the benignity of the law is such, as but this would bring us back to the ques- when to preserve the principles and grounds tion, whether a right were destroyed, or an of law it depriveth a man of his remedy obligation discharged, by the want of without his own fault, it will rather put legal remedy to recover the right, or to ex- him in a better degree and condition than act performance of the obligation. in a worse; for if it disable him to pursue his action, or to make his claim, sometimes it will give him the thing itself by operation of law without any act of his own, sometimes it will give him a more beneficial remedy.'

Whether the party who gained by the deception meditated it or not? authorities perhaps may make an important inquiry; but if they do not decide otherwise, the pure principles of equity seem to teach, that a man ought not to suffer detriment by fraud, occurring in a contract, although the fraud were not premeditated, and the contract not studiously and industriously If this be not their opinion, what there conceived in terms by which the party was or elsewhere can justify the final sentence harmed. the turpitude of the fraud, with And that the said decree is erroneous?] that ingredient, is indeed the fouler for it; to which sentence however, all people, but the reason, why the contract ought within a certain district, must now subnot to be detrimental to the party, is sup- mit; but which will not be approved, as is posed to be, that it was a contract which he believed, by them any more than it will be did not mean to make,-a contract, to approved by others. let us vary the case, which, if he had known the purport of the only, by supposing James Field to have terms used to declare it he would not have been resident on Amsterdam, Paris, yielded his consent, a contract not the some other foreign country, and William image of the parties intention, by which | Claiborne and David Minge to have gone

thither, and, for securing repayment of the | from and after the first day of january borrowed money by William Claiborne, to 1787, was enacted, that when any person have sealed and delivered their obligation there, instead of Princegeorge county in Virginia; would the court of appeals have reversed the decree, in that case, for the executrix of James Field against the representative of David Minge? if not, 291 what *reason can be assigned for the difference? if they would have reversed it, would foreigners think the justice of Virginia or the administrators of it proper subjects for panegyric?