If Barnes, the executor, had borrowed the money of the bank himself, although he might have applied it to the payment of his testator's debts, perhaps the equity of Bryan, who afterwards paid the debt, would be too slight to charge the estate of Bell with its repayment. The justice of the claim would be felt by all; although, (151) perhaps, it could be brought within no rule heretofore acknowledged by the Court. But I think any honest man would be unwilling to hold under the mere bounty of one whose assets were in conscience overrated with such a claim. The property is certainly benefitted to the amount of the money paid. This impugns not the equity of the petitioner Heart's claim, for he is a sufferer, and is contending de damno evitando. In this case the money was borrowed by Bell himself and went to his use. The debt has continued ever since, sometimes in the name of the widow and sometimes in the name of Barnes, the executor. Although by the forms of the bank this debt was extinguished upon each renewal, as it is called, by discounting a new note, and carrying the proceeds to the credit of the preceding one, yet in reality it is the same debt. I view this case, therefore, as if the original debt had continued until discharged by Bryan. And if this were the case, the equity is plain, and he is substituted to the rights of the bank when they held Bell's note. And notwithstanding it may have been canceled, or delivered by the bank to those who first renewed it, and by them thrown aside or destroyed, this Court will set it up, even if the cancellation was made with the consent and by the directions of those who first renewed it; for these were acts which ought not to have been done or assented to. The original note should have been preserved for those who afterwards paid the money given upon its surrender; for the executor gave no consideration for it. It is true, he promised to pay, but did not. Bryan has done *Page 127 what he promised to do. Those not acquainted with the artificial rules of the bank, and who looked at the transaction itself as it really existed, considered it still the debt of the estate. Notes given for its renewal were signed by Barnes, as executor, as principal, and by himself as surety; and further, he swears that he thought the assets of the estate were bound for its payment. I am satisfied that the time is not far distant, if it has not already arrived, when upon a note given in a form not to preclude an inquiry into the consideration, as where it is signed as executor, and given for a debt due by the testator, the assets may be reached even at law. I concur, therefore, with HALL, J., (152) that there should be judgment for the petitioner Bryan.
PER CURIAM. Direct the fund to be paid to the petitioner Bryan, and let each petitioner pay his own costs.