#### *Patsey Glenn*vs. *D. Caldwell and others.*

J. G. and fourteen other persons being about to form a company for certain purposes, agreed to purchase from X Gr., for the use of the company, a tract of land, and, they all, including J. Gr., executed to J. G. their joint and several instrument under seal, in the form of a single bill, for $15,000, the amount of the purchase money of the tract of land: *Held,*that, although J. Gr., who united in himself the characters of both obligor and obligee, could not maintain an action at law upon the instrument, yet in equity a suit could be maintained upon it; and that, 'in equity, it should be treated as a single bill, against an action on which the statute of limitations could not be pleaded in bar.

*Held, also,*that each party was liable for the whole amount due, after deductiog J. G’s. aliquot portion: and, per Dakgah and wardlaw, CC., that X G. was *169ratcably liable, with the solvent parties, for tlie proportions of such as were insolvent. ■ ' -

The company was afterwards incorporated, — the obligors, (except one who, by general consent, was released and another substituted in her place,) paid up the amounts of their subscriptions to the company, and J. Q-. conveyed the land to the corporation, talcing from it a mortgage to secure the debt: *Held,*that the obligors were not thereby released.

*Before*Dargan, Ch. *at Union,■ June,*1850.

Dargan, Ch. The tract of land on which Grlenn’s Spring is situated, originally belonged to John E. Glenn, complainant’s intestate. In 1837, a company was formed for the purchase of the land, and the erection of buildings and various other improvements at the Spring, with the view of establishing it as a watering place, and opening and keeping a hotel for the entertainment of visitors. The company consisted of fifteen persons, of whom John B. Glenn was one. Their names are as follows : D. Caldwell, H. D. Yanlew, R. H. Nott, L. N. Shelton, M. A. Moore, J. G. Wells, R. Mooreman, J. B. Glenn, O. B. Irvine, J. K. B. Sims, W. C. Pearson, Geo. Ashford, R. S. Brown, Ann Sims, J. Winnsmith, B. Ligón and William B. Thorn. (a) These persons opened a book for subscription of stock, in which each subscribed for stock to the amount of one thousand dollars. The stock book is without date; it contains a brief statement of the purposes of the association, to which each of the members of the company afiixed his name, and opposite to the name appended the amount of stock for which he subscribed. About this time, or perhaps a little while before, John B. Glenn had made a parol contract for the sale of the land to this company, for the sum of fifteen thousand dollars. •

With the view of securing to Glenn the payment of the purchase money, the company, on the 15th September, 1837, executed and delivered to him an instrument, of which the following is a copy: “We, either of us, promise to pay John B. Glenn the *170sum of fifteen thousand dollars, viz: Three thousand dollars on the first day of January next; three thousand dollars, January, 1839; three thousand dollars, January, 1840; three thousand dollars, January, 1841; three thousand dollars, January, 1842, with interest annually for value received, as witness our hands and seals, September 15, 1837.” To this instrument each member of the company, including Glenn himself, affixed his hand and seal, and it was attested by John E. Glenn. On’ this instrument are indorsed credits, as follows: $2,800 received from M. A. Moore, treasurer, the 1st January, 1838 ; $205.85 received from the same, 1st May, 1838; $1,000 received from P. M. Iluson, treasurer, 22d January, 1839 ; $1,000 received from P. M. Huson, treasurer, August, 1839.

In December, 1837, the company was incorporated with a capital of $75,000. On the 6th February, 1838, John B. Glenn, by a deed bearing that date, conveyed the land to the incorporated company. On the 3d October, 1839, the company adopted the following resolution, which is entered on their journal: “ *Resolved,*That the President of the G. S. Company execute a mortgage of the Glenn’s Spring tract of land to.J. B. Glenn, *as additional security to a note of hand given by the stoclcholders of the said company to the said John R. Crlenn.”*In pursuance of this resolution, the President of the company, (O. B. Irvine,) did,, on the same day, execute and deliver a mortgage to John B. Glenn of the Glenn’s Spring tract of land, to secure the payment of the sum of $12,840, with interest on $12,000 from 1st January, 1839. The mortgage recited no note or instrument and referred to none; but stated the consideration of the mortgage to be $12,000 “as in hand, paid by John B. Glenn,” and after conveying the land in the usual form, it proceeds to express the Conditions of defeasance, which, in the payment of the $12,000 in annual instalments, correspond with the four last instal-ments, as secured in the instrument of 15th September, 1837.

Glenn obtained a judgment at law upon the mortgage for $12,840, with interest from 1st January, 1839, which was signed *17124th July, 1841. So that at this time, Grlenn held the note, a mortgage and judgment to secure the purchase money of the land.

The original stock of the company was called in or paid, in the manner following:

1887, October 9, $100 per share, -.$1,500.00

“ November 18, 500 do. ------ - 7,500.00

1838, January 8, 300 do. ------ 4,500.00

“ March 10, 100 do..- - 1,500.00

$15,000.00

The whole of this sum, with the exception of $3,005, was expended upon improvements by the order of the company, and under the supervision of its agents. The company being in want of other funds to carry on its improvements, resolved to negotiate a loan for $10,000 from the Bank of the State of South Carolina. The preliminary resolutions as to this measure are as follows:

*“ Resolved,*That each member sign a note to the Bank of the State for $10,000.” And again, at another time: “Resolved, That each member sign a bond, binding each member for his proportion of a note given by the company to the Bank of the State for ten thousand dollars.” It seems that the loan from the Bank was obtained on the note of O. B. Irvine, the President of the company, payable to P. M. Huson and endorsed by Mm, B>. S. Brown, John B. Grlenn, M. A. Moore, D. Caldwell, R. Mooreman and George Ashford. These facts are recited in a resolution, recorded in the journal; and the resolution provides, that the President of the company is authorized to execute a note in the name of the company, as collateral security for the said debt, “ signing the same officially directly to the President and Directors of the Bank of the State, for the payment of the said debt, and to confess a judgment therefor, the Bank being permitted to retain the original note, the parties thereto continuing their present liability until the debt is paid.”

The company had now become greatly embarrassed, and re*172solved to sell tbe Glenn’s Spring property. And a resolution was adopted to apply to the Bank for its consent that the sale of the property shall be made on the following terms, to wit: $5,000 to be paid in cash, and $4,000 on the 1st January of each year, until the whole be paid, with interest on the whole from the date, payable annually, &c. The resolution provides that, of the cash instalment, $2,000 shall be paid to the Bank, and $3,000 to J. B. Glenn on the first of January, 1842. The purchaser was to give bond to the Bank with satisfactory personal security for $4,000 on the 1st January, 1843; $4,000 on the 1st January, 1844; and the balance on the 1st January, 1845, with interest, and each payment first to extinguish the interest, &c. It was also provided, that the purchaser was to execute to the Bank a mortgage, which was to have the first *lien*on the property. The same resolution then proceeds to provide for the payment of Glenn’s debt out of' the sales of the property, but he is postponed to the Bank, to whose debt a preference is given. The purchaser at the sale was to give bond and mortgage to the Bank, which was to have precedence in the way of *lien,*over that which was to be given to Glenn. It was further “ resolved, that John B. Glenn be requested, in assenting to this, to enter satisfaction on his mortgage, as a condition to the foregoing.”

A correspondence was opened with E. H. Elmore, the President of the Bank, as to the proposals contained in the resolution of the Glenn’s Spring Company. The Bank, by resolution, acceded to the terms proposed; Glenn also assented to .the arrangement, by which his debt was postponed to that of the Bank; and in pursuance of the request of the Glenn’s Spring Company, as expressed in their resolution, he entered satisfaction on his mortgage, by which he also discharged his judgment. The property was sold by the sheriff, according to the agreement between the parties. The company was greatly disappointed in the amount of the sales.

The sale took place on. the 4th of January, 1842. The land sold for $15,000, and the personal property for $3,521.23 ; the total *173amount of sales was $18,521.23. The costs were $224.44. The Bank received $11,526.34, and the balance $6,970.53 was applied according to the terms of sale to Glenn’s debt. But nothing is intended to be concluded as'to the amount of the payments that have been made.

Glenn brought an action of debt upon the instrument of the 15th September, 1837, as upon a sealed note, against Sims, ,(1 Rich. 39,) one of the obligors. He obtained a verdict in the Circuit Court, which on appeal was set aside, on the ground, that Glenn being one of the obligors, as well as the obligee of the instrument, it was not a note or single bill, and that no action upon it could be maintained at law. He then filed this bill, for the enforcement of the claim against such of the parties to the contract as are solvent and within the jurisdiction of the Court.

To this bill several of the defendants have answered, namely: O. B. Irvine, M. A. Moore, J. Winnsmith, R. Mooreman, Joseph Caldwell, executor of R. S. Brown, J. K. B. Sims and Ann Sims, who has intermarried with J. C. Caldwell, and who has answered jointly with the said J. C. Caldwell, and George Ashford. The execution of the note or instrument is not disputed by any of the defendants; nor is it denied that the debt due to Glenn for the purchase money of the land remains for the greater part unpaid. The grounds assumed in the defence are, that the note or instrument is a nullity, because Glenn was one of the obligors and at the same time the obligee, or payee; that the parties to it never intended to be jointly and severally bound; that if they ever were bound at all, they were not bound each for the whole; that if they were jointly and severally bound, originally, they ceased to bo so bound when the company was incorporated, and when the company, through, its President, gave a mortgage of the land to secure the payment of the debt; into which said mortgage, it is contended, the liability on the note merged. It was further contended, that when Glenn released his rights under the mortgage and judgment, he released thereby the liability of the drawers or obligors of the said sealed instrument. Some of the defen*174dants plead the statute of limitations to the .complainant’s bill, namely: J. C. Caldwell and wife, J. K. B. Sims, and O. B. Irvine. On the hearing, it was said that the defendants, M. A. Moore, J. Winnsmith, R. Mooreman, and Joseph Caldwell, executor of R. S. Brown, had also pleaded the statute of limitations. This was denied on the part of the complainant. It appeared that the solicitor for the last named defendants, after the filing of their answers, had obtained two orders on different' occasions, for leave to file the plea of the statute of limitations. The commissioner said there were no such records in his office, and he did not remember that there ever were. On this state of facts, the solicitor of the last named defendants submitted his own affidavit, stating his belief, that the plea of the statute of limitations had been filed in behalf of each of the said last named defendants. This I considered insufficient to establish the existence of a record. It can only be proved by a profert, or by positive proof of its having once existed; after which, proof of its loss or destruction and of its contents is admissible.

Having thus, at some length, given a history of the transactions of the company that relate to the claim of the complainant, I must now consider the rights of the parties growing out of the facts which I have presented.

Partners may even at law maintain actions against each other on contracts, or for the recovery of debts, where it is obvious that the subject matter of the contract or indebtedness was not intended to constitute a part of the capital or stock in trade. In this case it is clear, that Glenn was a partner to contribute one thousand dollars, and no more to the common fund; that being the amount which by the articles each member of the association was to pay in. The balance of the purchase money of the land, namely, $14,000, was due to him, as a private individual, was to be his own pi’ivate property, and not to be subjected to the hazards of the enterprise. This was to be paid to him by the other members of the firm. Eor independently of this contract and *175*conveyance*of tbe land, Glenn contributed and paid in bis rateable proportion of tbe stock.

Though the instrument of the 15th September, 1837, is not a sealed note or single bill, it does not follow that it is a nullity; on)the contrary, it is clearly a binding agreement or covenant, which has been expressed in tbe form of a sealed note. It is not any the less binding on account of its having assumed that form. Eor being ap intelligible contract entered into for valuable consideration, it is to be enforced by courts of justice according to its true and just import. It is certainly not a sealed note or single bill, and an action upon it, as upon a sealed note or single bill, could not be maintained. But I am not satisfied, if an action had been brought at law upon it, as upon a covenant or agreement under seal, with proper averments,_ that such an action would not have been sustained. At all. events, there can be no doubt about the right of the complainant to come into this Court to enforce this agreement according to its- true interpretation, if indeed his original rights under it have not been waived or lost. When money has been loaned, or property sold to a partnership by one of its members, the price of which was not designed to be a part of the capital or stock in trade, he is entitled to have it back unconditionally, while the co-partnership is going on. If he waits until after its dissolution or insolvency, his claim would be subject to all .the equities against him in favor of the partnership; to any debt, for example, which he as a member might owe the company, or a contribution to pay debts, if there were a deficiency of *assets*to satisfy the demands of creditors. In the case before me, it was hot shown or alleged that Glenn owed any thing to the company, or that there was any outstanding, unsatisfied debt, besides that of Glenn himself. The result of the enterprise is, that the company have got from him his large and valuable property, have speculated upon it; and the speculation having proved disastrous, they refuse to pay for it the stipulated price, claim to consider the agreement under which they acquired it a nullity, and if *176tbey cannot be relieved from it on that or other grounds, *they*plead the statute of limitations.

Before I proceed to give my views as to the construction of the agreement of the 15th September, 1837, I will premise that however fixed and established the rules by which the liabilities of partners are regarded as to the rest of the world, they may, as among themselves, make whatever contract they please, and such contracts become the law of the case to them. Their contract among themselves, and their mutual liabilities and obligations to each other, may assume all the infinite variety as to form, subject matter or stipulation, which belongs so the contracts of persons acting as individuals.

But to recur to the construction of the note — my opinion is, that the just and legal import is this : The subscribers to the note (of which Glenn was one) agreed to purchase the land at a valuation of fifteen thousand dollars, of which Glenn himself was to pay one thousand dollars. The balance, namely, $>14,000, they all become jointly and severally bound to pay, each in the whole and for the whole. It is in the nature of a contract for mutual insurance, and each signer became a guarantor for the solvency of all the rest. It follows, that those who are solvent and within the jurisdiction are liable for those who are insolvent and removed from the State, or who may hereafter become so. But from the terms of the agreement, and Glenn’s having affixed his own signature to it, Glenn himself is an insurer or guarantor for all. And in aid of those who are solvent and within the State, he would, by the terms of the agreement, be bound to contribute his rateable proportion of the deficit of those who are insolvent and out of the State.

Such I think would be the original rights and liabilities of the parties to this contract. Nor do I think that the subsequent incorporation of the company would have the effect of varying those rights and liabilities. Have they been lost or waived ?

It was contended that when Glenn took a mortgage from the corporation for the debt, the liability of the subscribers of the *177contract of 15tb September, 1837, was discharged and merged in a debt of the corporation, secured by the'mortgage; and one of the witnesses, P. M. Huson, testified that this agreement was to be held until the incorporation of the company; from which it was inferred, that after the incorporation of the company the note was to be given up, and other securities given. If this was the conclusion, I do not perceive that it would help the defendants. The debt of Glenn is confessedly unpaid. To the amount thereof, he is a *Iona fide*creditor of the corporation. The company was incorporated with a capital stock of $75,000, of which only $15,000 has been called in. And the corporation,would now be compelled to call in enough of its capital to pay this unsatisfied demand.

But there was evidence of a high character before me that the note was not to be given up ; that it was to be detained in Glenn’s hands, and that the mortgage was intended as cumulative security. This evidence is derived from the authentic and unequivocal acts and declarations of the corporation itself, as spread upon its journal. On the 3d of October', 1839,,the company adopted a resolution, of which I have already spoken, that “ the President of the company should execute a mortgage of the Glenn’s Spring tract of land to J. B. Glenn as additional security to *a note of hand,*-given.by the stockholders of the said company to the said J. B. Glenn.” The debt had been reduced by payments. The mortgage was accordingly given for the balance; upon which said mortgage Glenn afterwards recovered a judgment, as has been before stated. How can it be said that the mortgage was a discharge of the pre-existing obligation, when it appears from the resolution which authorized it to be given, that it was intended to be additional or cumulative security ?

Then it was urged that Glenn had, in his mortgage and judgment, the first *lien*on the land, and in this a most ample security of his debt, which he waived by giving the Bank debt a preference, and thus discharged these parties from théir original liability on the note. If the doctrine is at all applicable to the case, it will not apply under the particular circumstances. The Bank being a *178more urgent creditor, Glenn consented to waive bis prior *lien*in favor of tbe Bank for tbe special benefit, and at tbe special instance and request of these parties. See tbe resolution of tbe company.

Tbe last question which it is necessary for me to consider is tbe statute of limitations, which has been pleaded in behalf of some of these defendants. The plea of the statute cannot prevail. In October, 1843, Dr. M. A. Moore and J. Winnsmith offered to pay to the administratrix of J. B. Glenn, the amount of their respective contributions. Before a debt is actually barred, one of several joint obligors can renew it by promise or offer to pay. *Pearce*vs. Zimmerman, Harp. 305. This was the case of two joint makers of a note who were not partners. The doctrine does not apply to co-partners, except during the continuance of the partnership. After a vast deal of discussion and a great contrariety of decisions and of opinions, the doctrine seems now to be well settled; that after the -dissolution, one partner cannot bind the firm so as take the contract from the operation of the statute -of limitations. So firmly had the contrary doctrine taken root in England, that the interposition of Parliament was necessary to overturn it. Stat. 9, Geo. 4. The admission of two of these defendants, I conceive insufficient to renew this claim against the others, so as to prevent the statute from running against the others, except from the date of that acknowledgment.

But there is another fact which I think prevents the statute from operating as a bar to the claim. In the year 1841, Avhile the organization of the company still existed, and before any dissolution, the company adopted resolutions for the sale of their property. Among other things, they made arrangements for the payment of Glenn’s claim out of the proceeds of these sales, to this effect. _ He was to have three thousand dollars in cash from the purchase money. The balance of the purchase money, that was to be applied to Glenn’s claim, was to be paid in instalments by the purchaser, on the first of January, 1843, on the first of January, 1844, and on the first of January, 1845, with interest. This was the arrangement that was carried into effect, and what *179Glenn did actually receive from these sales, was paid to him in this way. Thus he has received payments as late as January, 1845, made by' authority of and under -an arrangement with the company before its dissolution. Though the arrangement was made in 1841, it was not consummated until 1845 payments were made in that year under the authority of the, -company, which in my judgment, is the same as if the company had at that time itself ■made the payment. It is from that time only that the statute obtained currency, and the lapse of time has not been long enough to create the statutory bar, the bill having been filed the 27th January, 1847. The plea of th^statiftelgs^herefore overruled.

Ann Sims, (who has since ii^ermáiíijís^ writhe defendant, J. C. Caldwell,) was one of th^dj^^ral 'kl$sfii^be?| to the agreement, and one of the stocMpldersiT^^he paid1 tjp one hundred dollars on her stock. !But mirado payd|[j^ath(4 instalments as they were called in, by one or^thp-i^^ilation^u the corporation, her stock was forfeited. The co^lapfp^ proceeded to forfeit her stock for their own benefit, and to ap^Spriate it to themselves. Thus Ann Sims was excommunicated and' cast off by these parties, (Glenn being one of them,) from -all benefit in a connection with the company. Under these circumstances, I cannot perceive that it is equitable that she should contribute. Indeed, it was admitted, on the trial, that she is not liable. The bill as to her and her husband, J. C. Caldwell, is dismissed with costs.

It is declared and decreed, that each of the defendants, with the exception of the said J. C. Caldwell and Ann Caldwell, are liable jointly and severally for the balance, due on the aforesaid agreement of the 15th September, 1837, and that the complainant do contribute a rateable proportion towards the shares of those that are insolvent and beyond the jurisdiction of the Court, and alpo the share of Ann Sims.

It is further ordered and decreed, that the commissioner inquire and report the balance due to the complainant on the said agreement. And the commissioner is directed to report the balance due on the purchase money for the land, to wit: $15,000, after *180deducting payments made by the funds of the company. From this balance he is directed to deduct one-fifteenth part, on account of the share of the said J. B. Glenn ; and considering Glenn as one of the solvent parties, the commissioner is directed to deduct also from said balance, his rateable proportion of the liability of the parties insolvent or out of the State, namely : H. D. Yanlew, R. A. Nott, L. N. Shelton, ¥m. C. Pearson, B. Ligón, W. B. Thorn and J. C. Caldwell and wife; after which deductions the balance remaining shall be the debt due to the complainant by the defendants jointly and severally.

The defendants appealed, on the grounds :

1. Because the parties to the agreement of the 15th, September, 1837, were released after the Act of incorporation, and the debt then became, by the consent of all parties, the debt of the corporation, and not of the individual members.

2. Because the complainant’s intestate released the parties to the agreement, by taking a mortgage from the corporation, executing a deed to the same, and each one of the subscribers having paid the amount of their subscriptions and proportionate part of the agreement, are no further liable.

3. Because if defendants are liable at all, they are only liable for their proportionate amount due on the agreement.

4. Because the complainant’s claim is barred by the statute of limitations.

The defendant, J. K. B. Sims, appealed, on the further ground:

5. Because the complainant should have been ordered to pa,y the costs expended by him in defending himself at law on the agreement now sued on.

The defendants, J. Winnsmith, M. A. Moore, George Ashford, R. Mooreman, and Joseph Caldwell, executor of Brown, appealed, on the further ground, viz:

6. Because the release of Ann Sims, now Mrs. Caldwell, from any liability on the subscription, or on the agreement of the 15th September, 1837, was a release of them.

*181The appeal was beard at November term, 1850, when tbe cause was remanded generally to tbe circuit Court, with leave to all tbe defendants to plead tbe statute of limitations.

At June term, 1851, tbe cause was again beard, in tbe circuit Court for Union, by Wardlaw, Cb.j wbo pronounced tbe following decree:

Wardlaw, Cb. This cause was beard first by Chancellor Dar-gaN, in June, 1850, and he delivered a decree for tbe plaintiff. Upon appeal from this decree, tbe Court of Appeals, at November term, 1850, gave all the defendants leave to plead the statute of limitations, and remanded tbe cause generally to tbe circuit Court. At tbe present bearing, this plea -was found to be pleaded; but in other respects the case made was substantially tbe same as that presented to Chancellor Dargan, and I refer generally to bis statement of tbe pleadings and evidence,. Some remarks, however, explanatory of this statement,- must be made.

The agreement in tbe stock book without date, it is manifest from tbe internal evidence, and from tbe direct testimony of P. M. Huson, was subscribed by fifteen persons before tbe single bill of September 15, 1887, was executed. George Ashford was one of tbe original subscribers to both instruments. B. Ligón came in afterwards and signed the single bill but never subscribed the stock book. William B. Thorn also came in afterwards, in tbe place of Ann Sims, and subscribed both instruments.

Tbe company was incorporated December 20,1837, for fourteen years, in tbe following terms: “ That Dr. Morris Moore and bis associates and their successors be, and they are hereby constituted, a body corporate, under tbe name and style of tbe Glenn’s Spring Company, with power to hold property, real and personal, of tbe value of seventy-five thousand dollars.’’ 8 Stat. 457.

At tbe meeting of the company,' Aug. 16, 1838, a resolution was adopted, that tbe President ’of the company communicate to Ann Sims, that her share, with $ 100 paid thereon, was liable to forfeiture, but that she might redeem by paying the $900 due on her share, by September 10, ensuing, or that tbe company would *182release her from all her responsibilities on Capt. Glenn’s note, if she would relinquish in writing all her interest in the company. Huson thinks she gave such relinquishment, but the instrument was not produced nor accounted for. At the meeting on -the second Monday in November, 1838, resolutions were adopted forfeiting Ann Sims’s share to the company, and selling and transferring the same to W. B. Thorn. The said Thorn attended meetings of the company on January 21, 1839, and October IT, 1839. It does not appear what members were present at the meeting of August 16, 1838, although officers were elected at that meeting. At the other meetings named, as well as those which acted concerning the debt to the Bank, and the sale of the assets of the company, Glenn himself attended, with a majority of the share holders. Ann Sims attended no meeting of the company in person or by proxy. Appended to Thorn’s subscription in the stock book, is this memorandum : “It is understood that W. B. Thorn take the share forfeited by Mrs. Sims ; on or before the first of November next he is to pay the subscription.”

All the credits indorsed on the single bill purport to be received from Moore or Huson, as treasurers of the company.

Other explanations may be made incidentally in considering the rights of the parties.

I concur in the views presented in the former circuit decree, that by the just construction of the single bill of September 15, 1837, the obligors are jointly and severally liable to Glenn and his representatives, for the balance remaining unpaid of the $15,000, and interest, agreed to bo paid by that instrument; and that such of them as are solvent, and within the jurisdiction, are liable for those who are or may be hereafter insolvent or without the limits of this State. Glenn being himself one of these obli-gors, made himself equally liable with the others, and his representative must abate from any recovery to which she may be entitled a rateable proportion, so ás to make her loss and liability equivalent to the liability of each of the solvent obligors within the jurisdiction.

*183I likewise agree that tbe liability of tbe obligors of tbis instrument is not restricted to tbe terms of tbe original subscription in tbe stock book, nor extinguished by any subsequent act of tbe company. In tbe absence of all proof of fraud or mistake, or of any reference to another paper, tbe construction of tbe single bill must be collected from its own terms. Tbe impression of Huson that this instrument was executed as an arrangement *ad*interim, until tbe company might be incorporated, and execute another obligation, is contradicted by tbe whole proceedings of tbe company; particularly by their resolution of October 3,1839, to execute a mortgage as additional security for tbis single bill, and by their resolution of September 21,1841, providing for its payment after tbe debt to tbe Bank. That Glenn was anxious to obtain a mortgage from tbe company, evinces only tbe caution of a shrewd creditor desiring to accumulate securities for bis debt. His anxiety about tbe mortgage, Iluson informs us, was fully shared by Hr. Moore, and perhaps by other solvent members of tbe company, who could have bad no anxiety on tbe subject, except to secure themselves from liability, on account of Pearson and other obligors, tbe solvency of whom was suspected.

In my judgment, the remedy of tbe plaintiff depends exclusively on tbe single bill. Tbe other grounds upon which her right of recovery are placed in argument, I suppose to be untenable.

It is said .that tbe company was incorporated with a capital of $75,000, and that as only $15,000 of tbis sum bad been actually paid in, tbe plaintiff might compel tbe stockholders to raise so much of the balance of capital as was necessary for tbe payment of debts. It seems to me to be a=misapprehension of tbe terms of tbe charter, to say that tbis company was incorporated with any such capital. Tbe Legislature in tbis case, as in many other charters, proceeding upon tbe impolicy-of allowing estates to be held in mortmain, has prescribed a sum as tbe *maximum*value of tbe property which might be owned by tbe company, but there is no intimation that tbe company must bold that amount and no less. The disability of tbe company to bold in succession, is re*184moved to a limited extent. A privilege to invest the profits of successful management in certain estate, at the option of the do-nees, can be converted by torture only into a requirement to make the particular investment. The case is altogether unlike *Kaslett*vs. *Wotherspoon,*(2 Rich. Eq. 895.) There the conrpany was incorporated with a present capital of $60,000, upon the faith of which, as capital invested, the debts wore contracted; and the creditors might well insist that the corporators should make good their pledges to the community. Here the creditor was himself a corporator, and no representation as to capital was made calculated to deceive any creditor, even one not cognizant of the transactions of the company. It is hardly necessary to reply to the suggestion, that the charter contains no limitation of the personal responsibility of the members of the company. The main object, and the effect of a charter, are to limit responsibility to the extent of the corporate assets.

It is likewise urged, that this company, by engaging in the business of merchants and bankers, as by the proof it did to some extent, forfeited the charter, and subjected the members individually to the debts of the plaintiff and other creditors. It may be observed that the charter does not indicate the purposes for which the company was incorporated; and if the object to establish a watering place had been distinctly set forth, it would not be clear that the purchase and sale of goods, and the issuing of notes, might not be incidental to the object. But if the charter might be forfeited at the instance of the granting power, for abuse of the privileges conferred, such complaint cannot be heard from the mouth of a corporator who concurred in the abuse of the charter.

I do not perceive the force of another argument that the plaintiff is entitled to be subrogated to the rights of the Bank in this - matter. The Bank had no lien by mortgage or judgment, except upon the corporate assets of the company, and these assets have been administered with the consent of the plaintiff’s intestate; and the note to the Bank by individual corporators, has been ex*185tinguished by payment, and if not, is barred by tbe statute of limitations. Tbe plaintiff, representing tbe intestate, bas no equity to recover from these corporators wbo have been exonerated by bis consent.

Tbe plaintiff must stand upon tbe obligation of September 15, 1837; and the main question in tbe case is whether she is barred from her remedy by tbe operation of the statute of limitations.

The counsel for the plaintiff urges that, granting this single bill to be a mere covenant which would be barred by the statute for non-claim within four years before January 27, 1847, when this bill was filed, the bar has been removed by certain promises, and payments made in that interval of time.

' The offer of Drs. Moore and Winnsmith, in tbe fall of 1843, each to pay one-fifteenth of tbe single bill if they were discharged from further liability^was rejected by tbe plaintiff as conditional; and in my opinion, such an offer to buy peace, when rejected, cannot be construed into an acknowledgment of subsisting liability so as to create a new starting point for tbe statute.

Reliance is placed on tbe fact, that of tbe obligations and notes placed in tbe bands of Glenn for payment of this single bill, on --January 4,1842, when tbe whole assets of tbe company were sold, and when tbe company was in fact dissolved, some of the obligations and notes were not payable nor paid to Mm until 1845. But I consider this transaction to have no operation upon the statute, as a point of origin for tbe bar, beyond the date January 4, 1842, when, so far as Glenn and the company were concerned, the payment was made. No acknowledgment or promise on the part of the company or its members then made, is prospective; the subsequent dealings of Glenn with the obligors .or makers of these *ehoses,*accepted by him in payment, were *res inter alios aeta.*Glenn himself, with new associates, purchased the Springs at this sale, and thus united the character of "debtor and creditor, but to what extent was not proved.

The question recurs, whether the statute of limitations is at all applicable in tins case; or, in other words, whether the instrument *186in question is a covenant or a bond. “ Tbe statute of limitations does not apply in terms to proceedings in tbe Courts of Equity. It applies to particular actions at common law, and limits tbe time within which they shall be brought according to the nature of those actions, but it does not say there shall be no recovery in any other mode of proceeding.” *Bond*vs. Hophins, (1 Sch. & Lef. 428); *Smith*vs. *Smith,*(McMul. Eq. 184). Courts of Equity, in analogy to the statute of limitations, will regard any legal demand as barred, by the same time in which it would be barred at law. Now, by our Act of limitations, actions of covenant are barred within four years from the accrual of the right to sue, but actions of debt upon specialty are not barred at all, being left to the presumption of satisfaction at common law from non-claim for twenty years. Is the instrument in question one upon which an action of covenant at law could be maintained ? I think not. Wherever at law one occupies both sides of the contract, unless exception be made as to certain commercial instruments — when he is at once entitled to demand fulfilment of the contract, and is bound, whether jointly with others or not, to fulfil the contract according to the demand; when he is obligor and obligee, or co-venantor and covenantee — the contract is *ipso facto*extinguished, and no suit whatever can be maintained. Such is the effect of the decision of our Court of Law in *Cflenn*vs. *Sims,*(I Rich. 34,) upon this very instrument. In the report of the case, the form of the action is not stated, and the defeat of the plaintiff is placed upon general principles, and in no (respect upon the pleadings. In *JRambo*vs *Metz,*(5 Strob. 110,) the former case is interpreted as deciding that Glenn, or his administrator, “ could not have maintained any action on the specialty, because he united in himself the character of both obligor and obligee, so that, if he only did what he promised, the obligation was fulfilled.” I conclude, as well from comity to the Court of Law, as from my own notions of doctrine, that this instrument is not the basis of a legal demand by covenant or other form of action.

The instrument has the form of a single bill, except that J. B. *187Glenn, is the obligee as well as one of tbe obligors; the plaintiff comes into this Court on account of this legal difficulty, and is confessedly entitled to have substantial performance of the contract according to the intention of the parties. The Court of Law, on the ground, that the remedy there is confined to the written form to which the contract'has been reduced, remits her for proper relief to the Court of Equity. Is she to be told here that the mistake of form, of which she complains, shall be corrected only if the whole form is changed ? I do not perceive the equity of thus converting a single bill into a covenant, merely for the purpose of bringing the instrument within the bar of the statute. It is incongruous to change a defective instrument into a legal demand so onerous, while we are professing to relieve against the strict rules of the common law. There is no reason why we should not give effect to the intention of the parties, that the creditor might safely indulge his debtors for twenty years.

Courts of equity sometimes interfere to prevent the bar of the statute of limitations when it would be unjust or inequitable; and especially they will not allow it to prevail by mere analogy in suits in equity, where it would be in furtherance of manifest injustice,. (Story Eq. §1521); *Bond*vs. *JTopMns,*(1 Sch. & Lef. 413). Here the debt of the plaintiff is unpaid; and the justice, if not the law, of the case, is affected .by the facts, that within four years before the filing of this bill the plaintiff has prosecuted her suit at law, and certain promises and payments have been made to her. :

The plea of the statute is overruled.

It remains to enquire as to the liability of Ann Sims, now the wife of J. C. Caldwell. There was no appeal from the former decree dismissing the bill as to Caldwell and wife. She never accepted the charter of the company, s'o far at least as members of the company are concerned. The $15,000 for which she was liable, have been paid in full, and appropriated without her consent, and with the consent of plaintiff's intestate, to improvement of the corporate estate. William B. Thorn was accepted as her *188substitute upon tbe single bill, with, the concurrence of the plaintiff’s intestate, and of most of the *defendants;*and with like concurrence she was repudiated as a member of the company as to its profits and liabilities, and another put in her stead. It seems reasonable that she, as well as the other party, should be allowed to avail herself of this arrangement. The proof does not show that all the defendants concurred in this substitution, but it does show that the plaintiff’s intestate, and nearly all the defendants so concurred, and that all had agreed, Aug. 16, 1838, that a majority of the whole company should constitute a quorum to do business. In this respect, I concur with the judgment of the former Chancellor.

It is ordered and decreed, that the commissioner of this Court enquire and report as to the balance due upon the single bill in question, after deducting all payments made thereon by the treasurers of the Grlenn’s Spring Company, or from the funds of the company or otherwise; and that this balance be paid by the solvent defendants within this State, not enumerating J. C. Caldwell and wife, to the plaintiff, after deducting an aliquot portion for the liability of plaintiff’s intestate; it being understood that such solvent defendants within the State, (except J. C. Caldwell and wife,) and the plaintiff, are rateably liable for the proportions of such of the obligors as may be eventually insolvent or out of the State; among whom are now named, H. D. Yanlew, R. A. Nott, L. N. Shelton, *W.*C. Pearson, B. Ligón, and W. B. Thorn.

The defendants appealed, on the following grounds, viz :

1. Because the parties to the agreement of the 15th September, 183T, were released after the Act of incorporation, and the debt then became, by the consent of all parties, the debt of the incorporation and not of the individual members.

2d. Because the complainant’s intestate released the parties to the agreement, by taking amortgagefromthe corporation, executing a deed to the same, and each one of the subscribers having paid the amount of their subscriptions, and proportionate part of the agreement, are no further liable.

*1898. Because if defendants are liable at all; they are only liable for tbeir proportionate amount due on the agreement.

4. Because the complainant’s claim is barred by the statute of limitations.

The defendant J. K. B. Sims, appealed on the further ground:

5. Because the complainant should have been ordered to pay the costs, expended by him in defending himself at law, on the agreement now sued on.

The defendants, J. Winnsmith, M. A. Moore, George Ash-ford, R. Mooreman, and Joseph Caldwell, executor of Brown, appealed on the further ground, viz:

6. Because- the release of Mrs. Ann Sims, now Mrs. Caldwell, from any liability on the subscription, or on the agreement of the 15th September, 1887, was a release of them.

*Herndon,*Dawldns, for appellants.

*Thomson, Bolo,*contra.

(a)

 Ligón & Thorn were not original signers. They came in afterwards. See Chancellor IVahmaw’s decree, *infra.*

The opinion of the Court was delivered by

Wardlaw, Ch.

On the questions presented by this appeal, we are content generally with the reasoning and conclusions of the circuit decrees: and none requires additional observations, except that in the fourth ground of appeal, as to the bar of the statute of limitations.

In *Glenn*vs. *Sims,*1 Rich. 84, the single bill which is the cause of action in the present suit, came under discussion in our Law Court of Appeals, and it was determined in that case, that as J. B. Glenn united in himself the characters of obligor and obligee, no suit at law could' bo maintained on the specialty. This imperfection in the form of the instrument, prevents the remedy of the plaintiff, either by debt or covenant, according to the procedure of the Court of Law; but it does not annul the contract, nor hinder the execution of it here, according to the intention of the parties. Judge RichardsoN, in delivering the opinion of the Court, speaks of the inconsistent relations of Glenn to the obligation, as making a case very like that where a testator appoints *190bis debtor executor of his will. The ease thus put, aptly illustrates the power of this Court to afford relief, where the formal inconsistency of being both plaintiff and defendant obstructs a suit at law. tfhe appointment of a debtor to be executor, even if he be one of several joint or joint and several debtors, or one of several executors, operates at law as a release or extinguishment of the debt; and this is on the principle that a debt is merely a right to recover the amount, by way of action, and as an executor cannot maintain an action against himself, the action is suspended; and a personal action once suspended by the voluntary act of the party entitled, is forever gone and discharged. 2 Wms. on Ex’ors. 937. But in equity, an executor is accountable for his debt as general assets of the estate. Lord Thurlow, in *Carey*vs. Goodinge, (3 Bro. C. C. Ill,) and Sir William Grant, in *Berry*vs. *Usher,*(11 Ves. 90,) treat the point as perfectly settled, that the appointment of a debtor to be *executor is no*more' than a parting with the action, and that it shall not operate as a release against creditors or legatees. If an executor should die indebted to his testator by bond, could it be doubted that the debt would be sot up in equity as a specialty against the executor’s estate ? The contract under consideration has in every respect the form of a single bill, except that the name of the obligee is added as one of the obligors. It is an agreement to pay money— a debt by specialty — and is in no other sense a covenant, than as every bond is a covenant. I suppose that the action of covenant might be brought upon a bond for the payment of money, and that if such form of action wore adopted, the statute of limitations would be applicable. It is not the usual course of equity to torture into a covenant an instrument susceptible of a different construction, merely for the purpose of defeating the remedy of the party entitled. What other reason is there for denominating this single bill a covenant, than to bring it within the operation of the statute of limitations ? It may certainly be construed otherwise. If we should express the contract between these parties by two instruments, we would then have in one, the promise *191under seal of tbe other *obligor»*to pay Glenn $15,000, a mere debt; and in tbe other the agreement of Glenn to incur a rateable share with the obligors of loss and liability. • Or suppose we consider Glenn’s name struct out from one of the two sides of the contract, the result would be the same. If his name as an obligor be cancelled, he would still be bound in this Court, on proof of the intention of the parties, while seeking equity to do equity, by assuming his just share of responsibility. It may be urged with much plausibility, and upon good authority, that the effect of Glenn’s execution of the instrument as an obligor, is to expunge his name as obligee. In *Devore*vs. *Mundy,*4 Strob. 15, the payee of a note, payable to himself of bearer, transferred it to a third person, and intending to bind himself as surety of the original maker, signed his name as a maker. The Court say: “ The rule in such cases as this, is to give effect, if possible, to thé intention of the parties. The intention of the defendant to bind himself being ascertained, our business, if we legally can, is to give it effect. The note may be very well read under such circumstances, as if the name of the payee were struck out; his signature as maker may very well have that effect; and it would then stand , as a naked promise on his part to pay the bearer. This must be so, as is said in *Stoney*vs. Beaubien, 2 McM. 813, because otherwise no legal effect would result from the defendant’s signature as maker.” The application of this case may be impugned, as being upon a commercial instrument, in relation to which the rules of the Court of law are less stringent than as to obligations. Granting this, it is difficult to perceive any reason why a Court of Equity should not extend such liberal construction to all instruments. The case of *Cockrell*vs. Milling, 1 Strob. 444, demonstrates the disposition of our Law Court to give effect to the intention of the parties, at the sacrifice of form, oven in sealed instruments. It was held there, that one writing his name on the. back of a single bill — which purports of itself to be a more assignment without guaranty — was liable as surety or indorser of the obligor, upon proof of his intention to be so bound.

*192If we may consider, then, this instrument as being in blank as to the name of the obligee, there is no difficulty in maintaining it as a single bond. In *Gray*vs. *Rumph,*2 Hill Ch. 6, a bond was set up in this Court, although it was in blank as to the obligee and penalty. This is a mere illustration of the principle that equity will not permit a trust to fail for the lack of a trustee. If this single bill had been drawn payable to some stranger, in trust for G-lenn, undoubtedly effect would have been given to it as a debt by specialty, and yet it is the same thing in substance. If a testator should give to a married woman, for her sole and separate use, the note or bond of her husband, it will not be contested that equity would supply a trustee and give effect to the legacy. Lord Hardwicke says, in *Skip*vs. *Huey,*3 Atk. 93, there are many eases where equity will set up debts extinguished at law against a surety as well as against a principal, as where a bond is burnt or cancelled by mistake, or delivered to the obligor by his fraud.

In *Hill*vs. *Calvert,*1 Rich. Eq. 56, the ordinary struck out the name of one of the obligors in a guardianship bond, and permitted another to sign as a substitute; yet although the ordinary was the nominal obligee and legal owner, it. was held that the first obligor was not discharged, nor the second bound.

The survivor only of several obligors of a bond is liable at law, yet the representative of a deceased obligor may be successfully pursued in equity.

All these cases, and many others might be cited in illustration, establish the general principle, that the intention of parties, safely deduced from the instruments of contract, shall not fail in equity, by reason of. defect of form, which might defeat recovery at law. In the present case, my mind forms the conclusion, from the instrument itself, that it was the intention of the parties to create a debt by specialty, not within the statute of limitations, and to be barred only by lapse of time.

The same conclusion may be attained by a different course of reasoning.

*193Courts of Equity will grant relief in cases of mistake in written contracts, not only where the fact of mistake is expressly established, but also where it is fairly implied from the nature of the transaction. Thus, in cases where there has been a joint loan of money to two or more obligors, and they are by the instrument made jointly liable, but not jointly and severally, the Court will reform'the bond, and make it joint and several, upon the reasonable presumption from the nature of' the transaction, that it was so intended by the parties, and was' omitted by want of skill or mistake. 1 Story Eq. § 162.

In *Simpson*vs. Vaughan, 2 Atk. 31, where there was an actual loan to partners, and their joint bond was taken, Lord Hardwicke inferred mistake in the form of the bond, without express- proof, .and said: “ The debt arises from the contract itself, and if there is any defect in the bond, the Court'will resort to what was the principal intention of the parties, that they should be severally and jointly bound.”' The cases on this point are well collected and explained by Chancellor Harper, in *Pride*vs. Boyce, Rice Eq. 288. See also *King*vs. Aughtry, 3 Strob. Eq. 156.

Where a bond is executed by one partner in the name of the firm, -all the partners intending to be bound by the obligation, the obligee has no remedy at law against the firm, but may charge them in equity on the ground of mistake. *McNaughten*vs. *Partridge,*11 Ohio, 223. In such case, there would be a merger at law of the original simple contract', and the partner executing the bond would be alone liable. 2 McM. 348. *Gardner*vs. *Hust,*2 Rich. 601.

Where a bond is intended to be executed,’but the seal is omitted by accident, relief will be granted in equity, although the party might proceed at law upon the simple contract, on the ground, that the consideration of the bond cannot be' enquired into; and it might be added, because a bond-is' not within the statute of limitations. *Montville*vs. *Haughton,*7 Conn. R. 549; *Wadsworth*vs. *Wendell,*5 John. Ch. 225.

In *Argenbright*vs. *Campbell,*3 Hen. & Munf. 144, a written *194instrument was declared to be a good bond, with collateral condition for the benefit of the obligee, although the obligor’s name was not signed opposite to the seal, but between the penal part and the condition, and the name of the obligee was signed at the foot of the condition, opposite to the seal; both signatures being attested by the same witnesses.

In every case where an imperfect bond is set up in equity, it is established with all the incidents of a specialty.

In the case before us, it is not necessary, in my opinion, to look beyond the instrument itself in order to ascertain the mistake of the parties. But if proof of mistake by extrinsic evidence is needed, I think it is afforded by Huson, the witness of defendants ; and his testimony is competent to show mistake, but incompetent to give construction to the instrument. He testifies that, after the rejection of several other forms, Dr. Winn smith objected to the form of obligation finally adopted, as on his construction he was liable for the whole, and that *this*was the reason that Glenn signed the sealed note — that Glenn was required to sign the note in order to put all on equality,^ as he retained one share. It is obvious from this testimony, that the only purpose of Glenn’s signature to the specialty was to furnish evidence of his rateable liability. The substance of Dr. Winnsmith’s objection to the obligation is, not that he was bound for the whole, but that Glenn, a partner in the enterprise, was not also bound. To avoid the inference of mistake, one of the counsel for defendants suggests to us that it was the deliberate purpose of some of the obligors, in requiring Glenn’s signature as co-obligor, to render the instrument a nullity, upon which no suit could be brought, but we cannot presume so gross a fraud as this would imply on the part of respectable gentlemen, without some proof.

We are further of opinion, that there is neither need nor propriety to look beyond the single bill itself, and the circumstances connected with its execution, to ascertain the intention of the parties, as the instrument is sufficiently definite in itself, and contains no reference to any other contract.

*195It is ordered and decreed, that-,the decree be affirmed and the appeal be dismissed.

JOHNSTON, Ch. concurred.

DaRGAN, Ch.

I concur in the judgment of this Court, that this suit is not barred by the statute of limitations. I do not concur, however, on the ground, that the instrument of the 27th of October, 1837, is a single bill or a specialty. In my view, it has none of the characteristics of such an instrument, except the form. But when examined in reference to the obligations it creates, it is found that the obligee is one of the obligors. He binds himself with the other fourteen obligors,^jointly and severally,_ to pay to himself the sum of fifteen thousand dollars. He binds himself with the others in the whole and for the whole sum. We have put that construction upon it. Eor we have held, that the representative of the obligee is bound to bear a proportionate share of the loss resulting from the insolvency or absence of some of the joint'and several obligors]

This point has been decided at law. In a suit between these same parties, *(Glenn*vs. *Sims,*1 Rich. 34,) it was decided, that this instrument was a nullity in that Court. The only ground upon which such a decision could have been rendered,, and the plaintiff turned out of that Court, is because it was not a single-bill. If it was a single' bill, or a sealed note under the Stat. 4 Ann, what was the impediment to a suit upon it at law ? It is clear, that the Court-of Law did not regard it in that light, or they would not have granted a nonsuit on the ground that it was a nullity at law. I entirely concur in the view which the Law Court has taken as to the legal construction of the instrument. But even if the case had been erroneously decided at law, it is the law of the case as to these parties.

But if it be not a single bill or sealed note, what is it ? It is certainly, not a nullity in every sense. For the Law Court did not' so regard it, and recommended the plaintiff to this Court. The instrument is valid as an agreement between the parties, ac*196cording to the true intent and meaning, deduced from the legal import of tbe terms. If it does not fall under that classification of contracts called covenants, it is an anomaly for which I am at a loss to find a name. It is not an assumpsit, for it is under seal. In order to determine its true character, we are to suppose all the obligations which it creates among the different parties, according to our construction, to be reduced to writing, and executed by the parties under their hands and seals. Then, it would be an agreement in writing under seal, imposing upon the parties to it their several duties and obligations: and such an agreement would be, in my view, a covenant.

But an action at law upon a covenant is subject to the plea of the statute of limitations. And it is a rule in this Court to apply the bar of the statute of limitations, wherever upon the same cause of action, the plea of the statute would be sustained in a Court of Law. And the plea of the statute of limitations, I think, should have been sustained by the Court of Equity in this case, but for the view which I have taken of some portion of the evidence.

Glenn had a mortgage of the Glenn’s Spring property to secure the payment of his debt; and also a judgment for the balance of his demand, which were precedent in the way of lien to all other claims. There was a judgment in favor of the Bank of the State of South Carolina for a large amount that was pressing upon the Glenn’s Spring Company for payment. The company desired to make sale of the Glenn’s Spring property to meet the exigency arising from demands of the Bank. Glenn, under these circumstances, consented that the property should be sold in part for cash and in part on a credit until the first day of January, A. D. 1845. He consented to release, and did release, his prior *liens*in favor of the claim of the Bank. He consented that the Bank should receive the cash instalment of the sale, and the balance of that claim out of the credit instalment, and that the whole of his demand should be paid out of the proceeds of the credit instalment falling due on 1st January, 1845. The company, consisting *197of the same persons with the obligors of the original agreement, (with the exception of Ann Sims, who had forfeited her stock, and had been released from her liability on the agreement,) passed resolutions for the payment of the Bank debt, and of Glenn's claim in the manner above stated. The resolutions and the agreement which they carried out, modified the agreement of 27th October, 1837, as to the time of payment of the balance due thereon. The original, and this new agreement, are to be construed in *pari materia,*and as forming one whole agreement. By the terms of the new agreement, Glenn- agreed to receive the balance due him on the 1st January, 1845. Eromthis agreement to the filing of the bill, ¡the time was not sufficient to create the statutory bar. And on this state of facts, I concur in the decree overruling the plea of the statuté, and the general affirmation of the circuit decree.

*Appeal dismissed.*