It must be conceded, that the experiment of this case is a new one. We think it is a proposition to extend the powers of a court of equity beyond its ordinary jurisdiction, and certainly beyond the authority of any precedent which we have seen.
*126This bill sets up no fraud, mistake, accident, or trust. It asks for no injunction, specific performance, nor discovery ; nor for any thing which fal]s*within the well defined powers of chancery. It avers no facts, which show, that the action at lawy now pending, for the breach of the contract recited in the bill between these parties, will not furnish to the plaintiffs an adequate remedy. Indeed, the only avowed pretence for a resort to a court of equity, is, that there is a copartnership account in the case, which it is desirable, if not necessary, should be settled ; and this defendant is made a party, that he may attend to and aid in such settlement. But was a court of equity ever called upon before, or did it ever assume, as appertaining to its jurisdiction, to settle an account, except as between the parties to it, or their privies or legal representatives? Ames is not required to render any account; nor is it alleged in the plaintiffs’ bill, that he has it in his power to do so ; nor that the accounts cannot as well be settled, in the action at law, as here. Ames was not a copartner; nor was he privy to one, either in blood, in law, or in estate, nor by contract. He -was no party to the articles ot copartnership, and cannot be presumed to have been conversant with the business or accounts. He was a stranger. How then can he be brought alone into a court of equity as a party defendant, and, without the representatives of the deceased co-partner, be made to settle such an account ? An account thus adjusted, notwithstanding the formality of making Ames a party here, would be in effect altogether an ex parte affair. To bring him into court to aid in settling an account of which he knows nothing, may be a very harmless matter; but a very ungracious feature of this bill is, that it prays, that .the result of such a settlement may be conclusive upon Ames, and afford an imperative rule of damages against him, in the action at law ! If Wells, the insolvent partner, was alive, and this proceeding was against him, the decree could have no such effect against his surety, Ames.
How far, in such case, a decree against Wells, if alive, or against his representatives, would affect this defendant, if at all, we are not required to say. But all the cases seem to recognize the principle, that when a collateral guaranty does not, from its nature or its terms, secure against the consequences of an action between the creditor and the principal, *127nor necessarily contemplate the recovery of a judgment, such judgment or decree, if of any effect to fix the liability of the guarantor, is never regarded as conclusive upon him. He has had no such right, either of defence or appeal, as is per-' mitted to a surety, by the civil law. Douglass v. Howland, 24 Wend. 35. Rapelye v. Prince, 4 Hill, 120. Moss v. McCullough, 5 Hill, 131. Jackson v. Griswold, 4 Hill, 522. Beal v. Beck, 3 Har. & McHen. 242. Drummond v. Prestman, 12 Wheat. 515. And it seems to us, that by our decree in this case, to give an effect to the adjustment of a copartnership account against a mere surety, and to which account he lias not been, in any way, privy, so as to conclude him, would be eminently unjust and unprecedented.
But suppose, under this bill, we could declare, that a decree fixing the balance against Wells, should operate against Ames, only as prima facie evidence of the amount of his responsibility ; such a decree, in its actual consequences, would be equivalent to a conclusive one ; because, as Ames is only a stranger, and has had no knowledge of the accounts, he cannot rebut even such pilma facie case. This would be equally inequitable.
If these plaintiffs had instituted proceedings against this defendant, to compel a discovery, or the production of papers &c. in aid of their action at law, there might have been no objection to them. And then, if a discovery was obtained, the court, in conformity with the general course of equity jurisdiction, would have proceeded to a final decree, granting the proper relief. But no such ground of equitable interference is claimed. And we repeat it. that this defendant is a surety of the most naked kind. He has all the rights and privileges of a surety of this description. His responsibilities are strictly of a legal, and not of an equitable, character; and as a guarantor, his liability may be dependent upon conditions and contingencies, which he cannot be compelled to forego for the convenience of the plaintiffs. And indeed, we suppose, that a court of equity will never extend the liabilities of a surety beyond their legal limits ; and his rights are to stand on the defensive until a case is proved against him at law : they are stricli juris. Walsh v. Bailie, 10 Johns. R. 180. Dobbin v. Bradley, 17 Wend. 422. Birkhead v. Brown, 5 *128Hill 634. Miller v. Stewart, 9 Wheat. 680, Whitcher v. Hall, 5 B. & Cres. 269. (11 E. C. L. 224.) Ludlow v. Simond, 2 Caines Cas. Err. 1. Braxton v. Winslow, 1 Wash. R. 31.
The plaintiffs suppose, that there is some peculiarity in this case, which gives it a claim upon a court of equity, by reason of the fact, that Wells has died insolvent, and that no administration has been granted upon his estate ; and that there is no person interested in taking the account but Ames, who can be made party to the bill for this purpose. We do not see how the legal rights of this surety can be changed, by the death of Wells. If the plaintiffs are embarrassed by it, in regard to their facilities of proof, this may be their misfortune, but it is not the defendant’s fault.
But we do not discover any legal embarrassment in the way of the plaintiffs, produced by the death of Wells; because, they can pursue their action at law against the defendant, and recover any sum they shall be able to fix upon him, as the surety of Wells. They make no allegation in their bill, that their remedy at law is not adequate. They do say, that it is desirable that the copartnership accounts should be settled ; but that this is necessary to give them adequate relief, they do not pretend. We know, that, in prosecuting the action at law upon the contract of guaranty, the plaintiffs cannot testify, and thus may not have as full proof as they hope to have here, where they probably believe they can, by settling the copartnership account, charge the defendant, by their own testimony. But what then ? That a party may fall short in his proof at law, affords no ground for equitable relief, where no discovery is called for, and no mistake nor accident has intervened. A court of equity cannot, in this case, more than in any other, help the plaintiffs to their own oaths, because they may not be able to prove their case in any other way. 1 Sto. Eq. 439. 440.
If IYells be dead, insolvent, yet his interest in this copart-nership is assets, which will give to the court of probate jurisdiction of his estate. — These plaintiffs, being creditors, are entitled to administer upon it, and through the agency of commissioners, have these accounts adjusted. Whether such a proceeding would have an effect more or less conclusive upon the rights of this defendant, or more or less so than a *129decree of a court of equity against Wells, or his administrator, we are not prepared to say.
We think no one can fail to see, that this is an attempt to convert a guarantor into his principal, and a call upon the court to aid the plaintiffs to charge him as such, by their own testimony, because they fear their common law evidence may prove inadequate, in their action at law.
We believe, that this bill is insufficient, and cannot be sustained.
In this opinion the other Judges concurred, except Storks, J., who was not present when the case was argued, and gave no opinion.Bill dismissed.