delivered the following -dissenting opinion:

My conclusion differs from that reached by a majority of the court, and I think the peculiarity of" the attending circumstances calls for more than a mere signification of dissent. The bill admits the legal liability of the obligors, by reason of the informal and irregular execution of the bond. In this the opinion below concurs, and so but a single question remains for determination. That is, are the facts such as to entitle the complainant appellees to relief? In my opinion, no equitable interference is warranted, and for these reasons.

It is established that two bonds similar in form, and also in the want of a lawful ingredient of that kind, were executed by the trustees to Mr. Maps. One was given to replace the other, and by the exchange, the appellant retained a subsequent instead of1 a prior • encumbrance on the premises described in the mort*321gages. Upon the circumstances, and under the representations by which one of that pair of securities was substituted for the other, the status of the parties in a court of equity must depend.

Now, it is apparent, from the evidence, and established just as clearly as the execution of the double securities, that the negotiation for the transfer was initiated and pursued by the complainants. They, and not the defendants, moved in the matter, and, as is demonstrated, most fully for their own advantage and benefit. This is a valuable factor or element in considering the case, and should be kept steadily in the foreground. The testimony throughout is all one way as to this. Mr. Maps had no connection with the religious society of which the complainants were trustees, was not interested in its welfare or prosperity, and does not appear as a contributor to its temporal wants, much less as a lay brother or class-leader in spiritual affairs. The appellees could not approach him with such an inducement, nor offer it as a make-weight to their argument. Here then, is a transaction begun, continued and completed by the trustees, on them own motion, and of their own volition, which all of them testify, to use the words of one, “ was done for the benefit of the church and church property,” initiated at an official meeting, a committee appointed to wait on the mortgagee, and ask or persuade him. I quote again, “to release the mortgage he held, and take one behind that of the building loan,” for no additional consideration, an exchange proposed by the officers of a religious body, to an old man, almost a centenarian, though not a member of their centenary society, not versed in legal business, possessed of little or no other property, and aided by no legal advice, the prominent actors, one after the other, coming forward and disclosing facts, creditable, it may be, to business sagacity and selfish instincts, but the contrary, in other respects—here, I say, is a transaction which these managers of a Christian church bring before a court of equity as coolly as they sought relief from their mortgagee on a previous occasion, and urge that as a reason for relief here for transferring the burthen, of a debt of their own creation from themselves, the rightful obligors, and fastening it for all time on one whom they sought, and suceess*322fully, to part with a good and primary for an insufficient and secondary security. What is it but saying virtually to Mr. Maps, at the time of the negotiation, in language something like this: We can raise money to improve our church property, if you will consent to exchange the mortgage you hold for a subsequent security of that nature. Our object is to promote the advantage and interest of the society, and an opportunity is offered of obtaining a loan by your assistance. We can promise no additional consideration for complying with our request, as we do not intend to incur any personal liability in the matter. We are not now responsible, and do not mean to become so. We will be frank, and tell you wo will give you only another bond and mortgage of a character similar to what you have now, but as the new one we propose to execute will be to a building loan association, the principal will be reduced by monthly payments, and you can be benefited to that extent. What we desire to raise is some $7,000, and we come as a committee from the trustees, to ask you to have a mortgage for that amount set before the one you hold for $4,700. You see it is a modest request, good sir, and also the dilemma in which we are placed. We will not help ourselves by taking any responsibility, but we want you to assist us in the way we have devised and point out to you now. It is easy to do so, for you have only to assume all risk, and do for us what we will not do for ourselves:

This is no exaggerated or highly-colored representation of what actually occurred during the negotiations, and is warranted most fully by: the evidence spread upon the record by the complainants. On this ground, clearly, the appellees are entitled to no relief as against Mr. Maps. No one of them was willing to assume, and all were anxious to disclaim, any responsibility for an act which they say, expressly, was intended to promote the benefit of the religious society with which they were connected, but are ready and quick in asserting that their mortgagee agreed to do for them just that thing, without consideration or motive, beyond their simple request, and with full knowledge of his act. If Mr. Maps had been shown to be a religious fanatic, and one who had contributed freely and lavishly, or wasted his money *323for religious purposes, such a thing might have been urged with some degree of plausibility, but, so far as appears from the depositions, he seems rather more of a sinner than a saint, excepting in this case. There is this to be said further just here, that the action of the committee, unless disclaimed, was the action of all.

Again, the legal effect of the instrument, as it stands, is to bind the obligors, and that being so, why should equity interpose, and relieve those obligors from a debt all say was incurred for the benefit of a society in which they were interested, but where Mr. Maps is not shown to have united with them even so much as in singing a doxology ? It is said he could not have foreclosed against the society if that had been contested, but the latter did not resist, and so that consideration is. eliminated here. The trustees were advised, no doubt, what would be the effect of a successful defence to such a proceeding, and that want of formality, while fatal to the mortgage, would but make them liable for the full condition of the bond. Their legal guide mapped out for them a wiser policy, and one that has proved to exempt them from any liability. In the view I have taken, it is immaterial how Mr. Maps or the trustees regarded the mortgage, or whether the former could have obtained relief under a different state of things; we are dealing with cold facts, not ideal suppositions. The one grand controlling equity feature of the case is, that the debt is that of the society, and not of Mr. Maps, and as the cold steel of the law will compel the trustees to make restitution to him for what part of their obligation he has paid, the law should be left unrestrained, and its trenchant blade free to do the proper work of right.