Attorney General [Sir John Scott], for the Defendants. A joint bond has been held joint and several upon circumstances; particularly in bankruptcy but I do not recollect any case, that goes the length of this. Bishop v. Church, 2 Ves. 100, 371, was upon circumstances. The admission of the Defendant Walter Ewer does not bring this up to the cases cited.

[*402]

Lord CHANCELLOR [LOUGHBOROUGH]. The Defendant Ewer gives an account of the general ignorance of them all: but he admits the intention * to have been, that the bond should be in the common and usual form of bonds from two persons: exactly the same as the admission in the other cases. not see, how the bond was better than the note, unless it was joint and several. A partnership note from persons in trade would have all the effect, that a joint bond would have.

I do

Declare, that the bond ought to be taken as a joint and several bond and refer it to the Master to take an account, &c. (1).

:

A SEVERAL bond may be ordered, by a Court of Equity, to be delivered up, when the intention was, that the bond should be joint; and there has been no laches, on the part of the obligor, after discovery of the mistake; nor any acts done by him, waiving the objection. Underhill v. Horwood, 10 Ves. 226; Gray v. Chiswell, 9 Ves. 126. So, on the other hand, a joint bond may be reformed, and treated as joint and several, if such was the intention of the parties. Burn v. Burn, 3 Ves. 573; Ex parte Halkett, 19 Ves. 475; Ex parte Symonds, 1 Cox, 200. tors. In 1790 a commission of bankruptcy issued against Joseph Freeman and Grace.

The petition was presented by persons claiming two legacies of 2000l. and 800l. under the will of John Freeman of Lutterworth; to answer which legacies Joseph Freeman, the surviving executor, had retained the said bond debt. One of the petitioners was also residuary legatee. The object of the petition was to be admitted to prove under the commission the sum of 28001. and the interest due thereon from the 8th of March, 1785, to which time it had been paid to the testator John Freeman of Lutterworth; and that if the dividends arising out of the estate of the bankrupts in respect of the said sum of 2800l. and the interest should be insufficient to discharge the whole thereof, then that the amount of the dividends to be received on the debt to be proved under the commission in respect of the estate of John Freeman of Devonshire Square, one of the obligors in the said bond possessed by Joseph Freeman the bankrupt, should be applied towards payment of such deficiency; and it was so ordered.

(1) Simpson v. Vaughan, 2 Atk. 30. Post, in Burn v. Burn, 573, this equity prevailed against creditors; vol. ix. 125, x. 225, 8; xix. 475; Ball v. Storie, 1 Sim. & Stu. 210. See Card v. Jaffray, 2 Sch. & Lef. 374; Sumner v. Powell, 2 Mer.

LORD WALPOLE . LORD ORFORD.

[1797, JUNE 21, 23, 26.]

TESTATOR by codicil in 1776 reciting, that he had devised his real estate by his last will, dated 25th November, 1752, charged his real estates with his debts, and legacies given by the codicil, and appointed executors; the bill was by devisees of the real estate under another will of 1756, one of whom was a legatee in the codicil; stating, that the will of 1756 was executed in pursuance of an agreement to make mutual wills; that the testator by the death of the other party was bound, if not in law, in honor; and did not mean to revoke the will of 1756 and revive that of 1752; and praying, that the will of 1756 and the codicil might be established, the trusts carried into execution, and the legacy paid: upon an issue directed the will of 1752 was established; evidence of mistake being rejected: on farther directions the Plaintiffs relied on the agreement, and offered evidence in support of it: the bill was dismissed: the Lord Chancellor being of opinion, that the relief sought was inconsistent with the frame of the bill, and therefore could not be given under the general prayer; that the evidence ought not to be received: and that upon the evidence the agreement was uncertain and unfair, and therefore not to be executed. (a)

SIR ROBERT WALPOLE, the first Earl of Orford, had three sons: Robert, who upon his father's death succeeded to the title, Sir Edward Walpole, and Horatio Walpole. He had two daughters: Mary and Maria. The former in 1723 married George afterwards Lord Cholmondeley, and died in 1732, leaving Lord Malpas her

(a) It seems that the judgment in the present case turned chiefly on the uncertainty, and, in some sense, the unfairness of the alleged compact. It does not establish the legality of mutual wills, which it has been said are unknown to the testamentary law of England. See 1 Williams, Executors, 9, 71; Hobson v. Blackburn, 1 Add. 277. One ground of objection to such an instrument as testsmentary, is that it is irrevocable, for it is of the essence of a will that it is ambulatory, and may be revoked at any time prior to the death of the testator; omne testamentum morte consummatum est, et voluntas est ambulatoria usque ad extremum vitæ exitum. Ibid. But it would seem that such a will may be enforced in Equity as a compact; Dufour v. Pereira, 1 Dick. 419; see the judgment in the latter case also reported 2 Hargrave, Jurid. Arg. 272; 2 Harg. Jurisconsult Exercitations, 101, where will be found Mr. Hargrave's remarks on the present case. See also Izard v. Middleton, 1 Dessaus. 116, which is a case somewhat similar to the present; but the agreement not being reduced to writing, and the defendant insisting in his answer, on the Statute of Frauds, and the evidence not being satisfactory, the bill was dismissed with costs. In another case, an agreement by a husband to make by will a sufficient provision for his wife, in consequence of her stipulating before marriage, by agreement in writing, to renounce all claim upon his estate, was enforced against his executors; it being held that the party by such agreement had renounced the absolute power of disposing of his estate with which he was clothed by law. Rivers v. Rivers, 3 Dessaus. 190. So it seems an agreement between the children of a family, made during the life time of their father, to divide his estate equally among them at his death, notwithstanding any distribution of the same he might make, would be enforced in Equity, if clearly proved, and if it did not infringe the Statute of Frauds. Nelson v. Nelson, i

Wash. 136.

The present case is also cited as an authority to show that relief, inconsistent with the case stated in the bill, cannot be given under the general prayer. 2 Maddock Ch. 171. See also Story, Eq. Pl. § 42; Jones v. Parishes of Montgomery, 3 Swanst. 208; Walker v. Devereaux, 4 Paige, 229; Wilkin v. Wilkin, 1 Johns. Ch. 111; Sheppard v. Starke, 3 Munf. 29.

It is deemed proper to preserve in these pages the prefatory note with which

eldest son, father of the present Lord Cholmondeley. His other daughter Maria married Charles Churchill. Robert the second Earl of Orford died, leaving an only son, George the third Earl.

Horatio, afterwards created Baron Walpole of Woolterton, brother of the first Earl of Orford, had four sons: Horatio, Thomas, Richard, and Robert.

Mr. Hargrave has introduced the remarks already referred to on this curious

case:

"The following professional paper is connected with the great cause in Chancery between the present Lord Walpole and the present Earl of Cholmondeley. Both branches of that cause are very ably reported. The branch at law is in 7 Durnf. and East 138. The equity branch is in 3 Ves. Jun. 402. It is only to the latter branch, that the following paper relates. The cause, so far as the subject of the following paper requires an introduction, may be thus explained:

"George the third Walpole Earl of Orford, grandson and heir of that eminent statesman Sir Robert Walpole the first earl, by a will dated 23 November 1752, devised Houghton and the other family estates in Norfolk in such a course of entail, as, in default of issue male from himself and his two uncles Sir Edward Walpole and the late Mr. Horace Walpole, afterwards fourth and last earl, to let in successively the issue male of his father's two sisters Lady Malpas the present Earl of Cholmondeley's grandmother and Lady Mary Churchill, and the issue male of his grandfather Sir Robert Walpole's two sisters Lady Townsend and Mrs. Hammond, in preference to his great uncle Horace the late Lord Walpole and his issue male. But afterwards, by a will dated 31 March 1756, George Earl of Orford devised the same estates in a course of entail, which, on failure of issue of himself and his uncles Sir Edward Walpole and Horace Walpole, postponed the issue male of Lady Malpas, Lady Mary Churchill, Lady Townsend, and Mrs. Hammond, in favor of his great uncle Lord Walpole and his male issue. This new arrangement was made by Earl George, in concert with his uncle Horace Lord Walpole: and the latter, on the very same day, in part-repeal of a will he had already made, executed a codicil devising his own estates in strict settlement, on failure of issue male from him, to Earl George and his issue male, with remainders successively to his uncles Sir Edward and Horace Walpole and their issue male, and to the issue male of Lady Malpas, Lady Mary Churchill, Lady Townsend, and Mrs. Hammond, exactly according to the plan and language of the entail created by Earl George's will of the same date: and Horace Lord Walpole dying about nine months afterwards, this codicil, so prefering the issue male of his elder brother Sir Robert Walpole and of Sir Robert's daughters and sisters to his own daughters, who were several in number, and to their issue, took effect. Almost twenty-one years after the will of March 1756, namely, on the 4th of December 1776, Earl George made a codicil. It was quite consistent with being a supplement to the last of his two wills, except that it recited his having made his last will dated 25 Nov. 1752, which was the date of the first of them. But on his death in Dec. 1791, he dying a bachelor; and his uncle Sir Edward Walpole being previously dead without issue; and his uncle Horace, who succeeded to the earldom, being a bachelor and greatly advanced in years, it became important to know, whether the recital in Earl George's codicil, of his having made his last will dated 25 Nov. 1752, should operate as a revival of the will so dated, and consequently as a revocation of the subsequent one of 31 March 1756; or should be considered as a mere error of date in the reference. If the recital of the codicil was a revocation of the last of the two wills, the present Earl of Cholmondeley, subject to the life interest of Horace Earl of Orford, and to remainders to his first and other sons successively in tail male, which soon became impossible by his death without having married, was entitled to the splendid house of Houghton in Norfolk and the other ancient family estates in that county. If the recital was a mere error in stating the date, then the last of the two wills was unhurt, and so the present Lord Walpole was entitled to the same devised Norfolk estates. To adjust this point, whether the codicil had revoked the will of 1756, and revived the will of 1752, Lord Walpole filed a bill in chancery against the Earl of Cholmondeley and others; the chief object of which was to have the will

The first Earl of Orford had also two sisters: Dorothy and Susannah. The former married Viscount Townshend, and left issue four sons: George, Augustus, Horatio, and Edward. Susannah married Anthony Hammond: and they left issue, three sons: Richard, Robert, and Horatio.

of 1756 established with the codicil of 1776 as a codicil to it. Upon the hearing of this cause in November 1795, the point being a legal one, Lord Chancellor Loughborough for trial of it directed two issues to the Court of common pleas. The result was a verdict in favor of Lord Cholmondeley. But the record of the judgment founded on this verdict, included a bill of exceptions by Lord Walpole, in respect that the court had refused to admit some evidence offered on his lordship's part, to show George Earl of Orford's not intending by his codicil to revoke the will of 1756; though the evidence was to obviate a doubt, which arose not from the codicil in itself, but from a circumstance external, namely, from the production of two wills, of which one agreed with the recital of the codicil in being last, and the other in literal date. To have this point as to the refusal of evidence of explanation farther argued under the bill of exceptions, the case was carried to the king's bench by error. But the judges of that court concurred with the common pleas in holding the evidence offered inadmissible.

"In this stage of the business, and when the equity cause was set down before Lord Loughborough for farther direction, without any intention of farther contesting the matter against Lord Cholmondeley, the author of the following paper was accidentally spoken to by the respectable gentleman, who was Lord Walpole's solicitor, and who had distinguished himself in his usual manner, both by his talents and his industry. What passed at first was a mere conversation. However, enough passed from the author, to show that, according to his notion, though Lord Walpole had lost his cause at law, there was a point open to him in equity, which possibly might equally serve his purpose. The idea suggested was, that the circumstances of George Earl of Orford's will of 1756, and of the late Lord Walpole's codicil of the same date, seemed to be such, as to lead to consider the two testators as having acted by compact, in other words as making mutual wills: and that the late Lord Walpole's death having rendered his part of the compact irrevocable, Earl George's part should in equity be deemed equally so. It occurred also to the author, that he was possessed of the copy of a judgment by the late Lord Camden, whilst he held the great seal, taken from his lordship's own note-book, in a case of mutual wills, which perhaps might be applicable: and upon inspection of the judgment, it actually appeared to be a case, at least furnishing principles favorable to maintaining Earl George's will of 1756, on the ground of compact. The solicitor of Lord Walpole was struck with the manner of thus raising an equity point for his lordship; more especially after seeing Lord Camden's judgment in the case of mutual wills before him. Under these circumstances, it was thought fit to consult the author professionally on behalf of Lord Walpole; and a case was laid before the author, in order to have his impressions on the point of equity. His opinion was given in the course of about nine or ten days; and is contained in the following paper, with no other difference than the correction of some error of expression, which escaped from the author in the hurry of writing, but which was not however in the least material to the argumentative parts of the paper. After his having written the opinion, and attended a consultation with Mr. Solicitor General Mitford and Mr. Mansfield, the two senior counsel for Lord Walpole in equity, the author was not thought a necessary person to be any farther resorted to in the business. But the equity point, which he first accidentally made, and afterwards laboriously considered, was regularly argued by the solicitor general, Mr. Mansfield, Mr. Graham, and Mr. Alexander for Lord Walpole. The judgment of the lord chancellor was against Lord Walpole on the point: and the clearness, with which it is reported in Mr. Vesey's third volume of Chancery Cases, is one of many proofs of his happy manner of recording judicial eloquence of the highest class. The chief ground of the lord chancellor's decision seems to have been, that the compact between the two testators was too vague and uncertain to be enforceable by a court of justice, and therefore was only fit to operate as an honorary engagement. How this objection

George, Earl of Orford, by a will, dated the 25th of November, 1752, devised all his manors, lands, tenements and hereditaments in the county of Norfolk (except the lands lim- [* 403] ited in jointure to the Countess Dowager, and certain

estates, mortgaged by his father to Thomas Walker) to John Harris and Thomas Crewys and their heirs, to the following uses: namely, to the use of the testator's first and other sons successively in tail male; remainder to his uncle Sir Edward Walpole for life; remainder to trustees to preserve contingent remainders; remainder to his first and other sons successively in tail male; remainder to the testator's uncle Horatio for life; remainder to trustees to preserve contingent remainders; remainder to his first and other sons successively in tail male; remainder to Lord Malpas, eldest son of George Earl of Cholmondeley, for life; remainder to trustees to preserve contingent remainders; remainder to his first and other sons successively in tail male; remainder to Robert Cholmondeley, second son of the Earl of Cholmondeley, for life; remainder to trustees to preserve contingent remainders; remainder to his first and other sons successively in tail male; remainder to Lady Maria Churchill for life; remainder to trustees to preserve contingent remainders; remainder to her first and other sons successively in tail male; remainder to the testator's great uncle Horatio, (afterwards created Baron Walpole of Woolterton,) for life; remainder to trustees to preserve contingent remainders; remainder to his eldest son Horatio, for life; remainder to trustees to preserve contingent remainders; remainder to his first and other sons successively in tail male; with similar limitato enforcing the compact is affected by the cases and authorities disclosed in the following paper, or might be otherwise affected, the author was not professionally called upon to consider. Had the equity point occurred sooner as a matter fit to be urged, it might have been more convenient to Lord Walpole's side of the question. For then his bill in chancery might have insisted, not only that the will of 1756 was not revoked, but that if it was, it was in breach of the compact between Earl George and the late Lord Walpole; and therefore that a court of Equity ought to declare Lord Cholmondeley as devisee in the will of 1752, a trustee for Lord Walpole as devisee in the will of 1756. Had the bill been shaped in that way, the equity question, so made to hang over the question at law, possibly might have assisted the argument for Lord Walpole in each stage of the business. On the trial in the court of common pleas, it might have increased the difficulty of imputing to George Earl of Orford an intention of revoking the will of 1756, that a verdict to that effect might be rendered finally inoperative by a decree of chancery, declaring such revocation to be, not merely a breach of faith almost irreconcilable with the known high honor of the testator, but even a fit subject for equitable relief. In case also of ever reaching the point of equity, that point would have been in direct issue between the parties on the pleadings and proofs, instead of being taken up as a mere after-thought, on a bill, framed without the least view to raising any such point, and therefore not adapted to produce a regular discussion of it.

"It is proper to add, that both the following case, and the preceding prefatory introduction in it, are extracted from the second volume of the author's Juridical Arguments, and were first published in 1799: and that, about a year after the lord chancellor's having adjudged this Walpole case of mutual wills, he had another case of mutual wills before him, namely, the case of Hinckley v. Simmonds, 4 Ves. Jun. 160, being a case, in which two sisters made mutual wills of personal estates, and in which his lordship held, that the marriage of one did not revoke the will of the other."