at this term delivered the opinion of theeourt. It appears from the admissions in the cause, that on the 17th of September 1806, George Riley and Richard Waters, as sureties, entered into a joint administration bond, with Meshach Browning, administrator debonis non of John Holmes, that Richard Waters died in the year 1810, and George Riley in 1814 or 1815, on whose estate the appellee administered; that after the death of Waters, judgment to a considerable amount were obtained on the administration bond, against Browning, and Riley, the surviving surety, on account of which large payments were made by Riley, Browning being insolvent; that the bond was drawn and executed by order of the orphans court of Montgomery county, in the form in which it appears, by which tribunal it was intentionally required to be “■joint,” and not “joint and several;” and that since the death of Waters, his real estate has been sold for the payment of his debts, under proceedings regularly instituted for that purpose.

The proceeds of which, in the hands of the trustee, are sought to be subjected to the payment of half the amount so paid by George Riley, on account of the judgments rendered against him and Browning on the administration bond, which is resisted on the part of the heirs and representatives of Waters. In the case of a joint bond, the remedy at law survives against the Surviving obligor, and is lost as against the representatives of him who first dies.

*310If then, this was a suit at law, on the bond, by those interest» éd in the estate of Holmes, against the representatives of Waters, it clearly could not be sustained, the remedy, by the death of Waters, having been lost as against his representatives. Nor could chancery, in proceedings between the same parties, fix the representatives of Waters, with a liability which did not exist at law. The general rule being, that where the remedy at law is gone, chancery will not revive it, in the absence of any accident, fraud or mistake; to which the case of a - bond, where all are principals, has been held to be an exception, each being equally benefited, and under an equal original moral obligation to pay the debt, independent of the bond, to which equity relates back, when the remedy at law on the bond is gone. But in the case .of a surety, who is bound only by the bond itself, and is not under the same moral obligation to pay, equity will not interfere to charge him beyond his legal liability.

And surely there is no evidence here of either mistake or fraud. The act of assembly, under which the bond was taken, does not require that such bonds shall be “joint and several,” but is silent on that subject; and the admission stated in the record is, that it was intentionally ordered by the orphans court,' to be drawn and executed as a joint bond. Mistake then, there was none, since, it is admitted, that what was done, whether judiciously or injudiciously, was intentionally done. And there is as little evidence of- fraud of any kind. On whom could fraud have been committed? Not by the parties, or cither of them, upon'the orphans court, because they executed the bond, under, and in pursuance of the directions of the. court; and certainly not by the court itself, of which it may be proper .to remark, there has not been the slightest insinuation. And Waters, not having been a principal in the bond, but only a surety, the exception in relation to principals, who are under the same moral obligation to pay the debt, being equally benefited, would not reach the case. Is there, then, in this case, any thing to enable a court of chancery to extend to the appellee any relief, to which those interested in the estate of Holmes would not have been entitled? If there is, we have not been able to perceive it. There is no doubt (as a general principle,) that a surety, who has paid the debt, may compel his. co-security to make contribution; or he may, by substitution, take the place *311of the creditor, and acquire all his rights against the principal debtor. But he can acquire no rights that the creditor had not, and cannot, therefore, compel a contribution by the representatives of his deceased co-security, against whom the credit tor had no remedy. So long as the securities in a joint bond are living, the creditor has his remedy against both, and one may recover against the other a just proportion of what he is made to pay, both being under the same obligation to pay. But if one dies, the remedy, as to him, is gone, and the duty, and the remedy both survive against the survivor; and there being ..nothing due from the representatives of the other, to the creditor, a payment by the survivor cannot be for, or on their account, nor can it create any liability in them that did not before exist. In such a case the surviving surety pays only his own debt, in which the representatives of the other have no concern, and his only remedy is against the principal debtor. This is just that case; on the death of Richard Waters, the-remedy on the administration bond of those interested in the estate of Holmes, survived against George Riley, the surviving eo-security, and Browning, the administrator and principal in the bond, with no liability resting on the representatives of Waters. The payments, therefore, by George Riley, on the. judgments obtained against him and Browning, could create no charge against the representatives of Waters, on account of debts, for which they were in no way responsible; and which could not by the creditors harm been enforced against them either in law or equity. In this view of the case, we think that the proceeds of the real estate of Waters, in the hands of the trustee, cannot be charged with any proportion of the sums, paid by George Riley on account of those judgments; and that the decree ought to be reversed.

dissenting, delivered the following opinion. Two objections have been made to the decree of the court below.

1. That the bond is void, being a statutory bond, and not according to the form prescribed by the act of assembly, not having the words, “not already administered,” in the condition, as required by the act of 1798, ch. 101, sub ch. 5, s. 6.

2. That at the death of Waters the liability was extinguished both at law and in equity.

*312Upon the first question it must be remarked, that the legisla-» "ture by the act of 1798, ch. 101, sub ch. 3, s. 11, in prescribing the form of the condition of a bond to be executed by an executor or administrator, never intended that the form should, be literally pursued, but they intended only to prescribe the •substance and effect of the condition. This section expressly declares, that the condition shall be to the following effect; and then -gives the form: The sub ch. 5, s. 6, of the same law declares, that the letters, bond and oath, of an administrator debonis non, shall be in the form directed in the case of an executor, except that the words “not already administered,” shall b.e added in the proper places. By looking at the form of the bond, oath and letters, prescribed in the section previous to the fifth section, it will be c^Lscovered that these words could not have been intended to ffie inserted in the condition of the bond, there being in the words of. the legislature, no proper place for their insertion. The bond is perfect without them, by barely stating the obligation to discharge the duties of administrator de bonis non, instead of those of executor or administrator; and when this change in the phraseology is effected, the condition corresponds in every particular with the condition prescribed by the act.

The legislature must have intended the insertion of the words J,not already administered,” to apply to the oath and the letters, in which alone, according to the'forms they have prescribed, •would there be appropriate places for the insertion.of such words.

But if by any construction the bond could be Considered as -specially referred to, and being one of the instruments indicated as containing a proper place for the insertion of these words, I’ would not wish to be understood, as intimating an opinion that fi-n failure to insert these words, the bond would, there-^}’^>'^,e.-tooperative and void. On the contrary, I think, that wícte; ..the legislature prescribes the substance of a bond, and the bond is so drawn as to include every obligation imposed by the law, and to afford every defence given by it, it will be sufficient, notwithstanding it may be slightly variant from the literal form set out. This is the doctrine maintained in Rhodes v Vaughan, 2 Hawk’s N. C. Rep. 167, and I would adopt it here as consistent with reason and propriety.^ Now the designation of *313the administrator, by the name of administrator de bonis non, as explicitly and intelligibly defines his duties, as if it had been in so many words stated that he was to administer on “goods not already administered,” Of course his obligations are the same, and he would be deprived of no defence he might other* wise have had.

With regard to the second objection, it is perfectly clear, as. a general principle, that where a bond is joint, and one of the obligors die, the remedy of the obligee exists against the surviving obligor alone, and that it is extinguished against the representative of the deceased obligor; and that in ordinary cases equity will not interpose to give relief to the obligee by enabling him to pursue the estate of the deceased obligor in the hands of his representatives. But there are exceptions to this general rule, as where a bond is made joint by fraud, ignorance or mistake, in which eases equity will revive the duty. So, too, where the lending is to two, and they both have the benefit of the loan, there exists on the part of both obligors a moral obligation to pay, and equity will enforce the obligation against the representatives of the deceased obligor, although the bond be joint, and not several; as in the ease of Simpson v Vaughan, 2 Atk. 33. The borrowing on the one side, and the lending on the other created, in the language of Lord Hardwiclee, a reasonable presumption, that the bond was either, through fraud or mistake, or for want of skill, made a joint bond, instead of a joint and several bond. The original contract of lending and borrowing was that each and both should pay, and in such case the court will presume fraud, ignorance or mistake, in the change of the contrae! from a joint and several to a joint contract. A surety in a joint bond, not having participated in the borrowing of money, or in its original consideration, is bound to the obligee by no moral obligation whatever to pay, but merely by the legal force of the bond, and there would be nothing i ease upon which to build an equity by which the dut him should be revived. These are the doctrines, obligees enforcing obligations which are joint, agai presenfatives of deceased obligors, i l&espects

It remains to be considered how far these doctrine^tearjj^B similated to the cases of sureties in joint obligations claitm¿gj;a mv, *314tribution. And here it is necessary to consider upon what this doctrineof contribution is founded. Itissaid by the court in Deering v Earl of Winchelsea, 2 Bos. & Pull. 272, that it is founded on a principle of equity, and not on a contract; but in Claythorne v Swinburne, 14 Ves. 169, it is perhaps more properly intimated, that as it is founded- in equity, all who become sureties may be considered as contracting with regard to the principle of equity, which demands contribution. . It is then a principle of equity that the losses of the sureties are to be equally borne, and the contract between the sureties is in reference to this doctrine of equity. This equitable, principle of contribution extends to joint, as well as several bonds, and to sureties, where even their names appear upon different instruments. Deering v Earl of Winchelsea, 2 Bos. & Pull. 270. If it be built either on the principle of equity alone, or on a contract in reference to the existence of such a principle, can the accidental death of a joint obligor defeat this equity? Sureties always having reference to this equity, rely oh the contribution to lessen their responsibilities and ultimate eventual and contingent losses, and oí* course look to the character, solvency and safety of their co-securities, deriving from those circumstances a greater security. It is impossible to say, that if the contribution is founded in contract, that it could be defeated by the death of the co-security. And if the contribution depend not on contract, but upon equity, that such equity can be defeated by the death of one and the survivorship-of the other obligor. In the case of an obligee pursuing a surety’s estate, equity will not interpose, because where equity is equal the law must prevail, and the bond as to his estate is extinguished at law. Now the surety’s equity is equal to the obligees — no consideration passes between them, there is.no moral obligation to pay, and he is only bound by the letter of his contract. How different is the case of a demand for contribution there, there is no equality of equity if one pays the whole, in saying he must bear it. There exists between them a clear moral obligation to apportion the loss, to say nothing of a contract between them, which would demand the interposition of equity to lighten the burthen which has been thrown upon one of them

The obligee cannot enforce a bond extinguished at law, for he has no equity which would give "it life.

*315The surety does not even seek to revive the bond in asking contribution of his co-security. He asks it in virtue of a consequence which has befallen him from the original signature. He does not, in any case, ask to revive it, for that could not be done; his payment alone had extinguished it. But he asks it, because it would be against conscience, that the estate of one who had entered into the suretyship with him, between whom there was a privity, and in relying on whose solvency and ability to relieve him from a portion of any burthen which might fall on him, he had entered into the bond, should be entirely exonerated.

To say that the bond was extinguished as against Waters' estate, does not meet the question. For the equity of the survivor, who is obliged to pay, looks to the source and origin of the transaction, and will, and ought, to coerce that original obligation that existed between them, and which is founded on the highest and clearest equity and justice.

Any contrary view must be grounded on the notion, that the sureties in the bond looked to its joint character, were acquainted with the legal principles which attached to it, and gravely contemplated their exoneration by death; which would be a very forced presumption, utterly inconsistent with fact, and with all those motives which experience teaches us operates upon mankind in such situations. I do not mean to assert that contribution is founded on contract; it would be sufficient to justify my view, that it has its foundation on amoral obligation. But I cannot but think, that there is much reason for saying, that it may be viewed in the light of a contract. For contribution is so obvious an equity, that every man must be supposed to look to it, and looking to it, I think it could violate no principle to say, that the sureties, in case of loss, tacitly enter into a contract to bear each a portion of the burthen. And, although it is positively asserted, that contract has nothing to do with the liability, yet, is not this doctrine clearly contradicted by the fact, that courts of law maintain actions of assumpsit, in which contribution is enforced? For how would such an action lie but upon the idea of a contract express or implied? If it be said that it lies on the principle of justice, or on moral obligation, this jn itself will not be sufficient, unless from *316such moral obligation you can infer a contract. And it will be found in Peck v Ellis, 2 Johns. Ch. Rep. 136, that the jurisdiction of courts of law in contribution between sureties, is expressly placed upon the ground of an implied assumpsit arising from the knowledge of the general principle, that equality is equity.

It has been correctly remarked, that “rights claimed by, and injuries arising from survivorship, are not viewed in a very favourable aspect, either at law or in equity.” Jinkins v De Groot, 1 Caine's Cas. 122. And this case, it strikes me, is of all cases which could be selected the least favourable for enforcing advantages claimed to the deceased’s estate from the survivorship of his co-security.

I am clearly of opinion, that the decree of the court below was correct, and that it ought to be affirmed.

DECREE REVERSED, (a.)