after making the above statement,, delivered the opinion of the court,
*275These four oases are so closely connected in their facts, as w-ell as in the questions of law presented for determination, that it is convenient to dispose of them by one opinion.
Our attention will be directed first to case No. 50, in which a decree is sought to cancel, or in the alternative, to reform the bond of August 24, 1868, executed by Durant as principal, and by Griswold and Bradford as sureties, and to restrain the defendants from suing upon it in its present form. The granting or refusing of such a decree depends,, of course, upon the inquiry whether the plaintiff Griswold has, by evidence sufficiently clear and convincing, manifested his right to the relief asked.
' While in respect to some matters there is a conflict among the witnesses, certain facts and circumstances are clearly established, and may be summarized as follows: Durant, in August, 1868, was a citizen and resident of New York. He went to Newport for a brief stay, and was there on the morning of Saturday, August 22. Abdut noon of that day the suit, in which the writ of ne exeat issued, was commenced against him. He was then sailing, with several friends, in his yacht on the high seas. The yacht' landed at the Newport wharf shortly before eleven o’clock at night: Upon his stepping ashore he was notified by two officers, who had kept continuous watch for him at the wharf during the afternoon, that they had a writ for his arrest — meaning the ab^ve writ of ne exeat — and that he must go to jail. He accompanied them to that place, one of the counsel of Hazard, Mr. Peckham, following on foot to’the sheriff’s office. Information of the arrest having been communicated to Mr. H. W. Gray, also a citizen of New York, temporarily at Newport, that gentleman went to Griswold, who was his uncle, and begged the latter to go to the jail and become bail for Durant’s appearance. Griswold had only a slight acquaintance with Durant, never having met him until the spring of 1868, and held no personal or business relations of any kind with him. To oblige his nephew, who was Durant’s friend, and merely as an act. of kindness and courtesy to. a stranger (Griswold then resided in Newport), he acceded to the request to become baií for Durant’s appearance in court,- *276and for that purpose only went to the jail. Hazard learned, a little before eleven o’clock, that Durant had been arrested as he landed from his yacht, and that owing to the lateness of the hour the sheriff had taken him directly to the • jail instead of his own office, “ as had been previously arranged.” He went immediately to the lodgings of one of his attorneys, Mr. Bradley, and caused him. to “ go and see what could be done to prevent Durant from remaining in jail over Sunday; ” authorizing his attorney to use his name “for the purpose of releasing said Durant from jail until Monday, it being regarded, as very doubtful whether Durant in the short time, then remaining before Sunday would be able to provide the necessary bonds,’’
■ Shortly after Griswold, accompanied by Gray, reaehed the jail, the two counsel of Hazard, namely, Bradley and Peck-ham, arrived there, and a few moments later Governor Yan Zandt came .in obedience to á xhessage from Durant, conveyed by Bradford, to act as his counsel. Hazard,, it seems, did pot accompany his counsel to the jail. It was now nearly twelve o’clock. All who were at the jail agree that they were there only because of the', árrést of Durant under a writ commanding the sheriff to take bail from him, in the sum of $58,735, that he would not go or attempt to go into parts beyond the State ■ without the leave of the court, and, if such bail were not given, to commit him to and keep him in jail until he gave bail of his own accord; and, such security being taken, the officer was required by the writ to return a certificate thereof to the court. There is no claim that, any one present was ignorant of the terms of the writ, or of the extent of the authority of. the offi.7 oer charged with its execution. It is further, agreed by all the witnesses that there was a conversation at the jail between the lawyers and Durant as .to what could be done in order to effect the latter’s release. But in this discussion or conversation Griswold took no part whatever. That much is distinctly stated by Beckham, one of Hazard’s attorneys who drew the bond,,and supervised the execution of the writ of ne exeat, although he says that the sureties could not “help hearing, if they paid any attention.” It is equally beyond dispute that *277the object of Griswold’s presence at the jail was well known to Hazard’s attorneys.
Just here arises the difference among the witnesses as .to what took place at the jail. Detailing what occurred according to his recollection at that place, Peckham says : “ When I got to the jail I found there Judge Bradley, who had only preceded me there by a minute or two, Mr. Durant, Charles •C. Yan Zandt, his counsel, Mr. Griswold, Dexter Bradford, and a stranger, who was, I presume, Mr. Gray. Mr. Yan Zandt and Judge Bradley, were already talking about the release of Mr. Durant from custody. Judge Bradley said: ‘ That' is a simple matter. Let him give the bond called for by the writ.? The nature of that bond was briefly explained. Mr. Durant said that .it was out of the question for him to give it; that he couldn’t remain any longer in Rhode Island; that his presence was absolutely demanded outside of the State, and forthwith ;' .and that he must leave here Monday morning. It was suggested that he might file his answer and apply for the' discharge of the writ immediately; but he said, ‘ I know what proceedings in court are, and I can’t remain here at all.’ It was then proposed that he should give a bond in the same amount marked in the two writs in the two cases, conditioned to abide and perform whatever decrees the court might make against, him in those suits. -The nature of these proposed bonds was freely* discussed by Judge Bradley, Mr; Yah Zandt, and Mr. Durant, and the fact that they were bonds which would hold the principal • and*” sureties liable to pay money in case Durant should not perform any decree madé by the court was commented on by Mr. Yan Zandt aijd Mr. Durant. During all this interview. Judge Bradley did ill the talking for the complainants, and Mr.' Yan Zandt abd Mr. Durant spoke about equally for their side.” The same witness •states: “Mr. Yan Zandt having conferred with Mr. Durant,. and those two having conferred with the sureties — I mean Mr. Griswold and Mr. Bradford — Yán Zandt then announced that they would give the bonds proposed. As it was then very late, it was further agreed that all should meet at' my office on the following Monday morning, soon after mid-’,' *278night, and execute the papers. Besides these bonds, it was; also agreed that'the respective counsel should sign an agreement that upon the bonds being executed the writs of ne exeat should be absolutely discharged. Just at the close of the interview Judge Bradley addressed himself to all present, saying that he wished to make sure that all understood the arrangement alike, and he stated that Mr. Durant was to give bonds, with Mr. Griswold and Mr. Bradford as sureties, in the sums marked in the writs, to abide and perform all the decrees, of the court in the suit; that counsel should sign agreements, for the discharge of the writs; that all should meet at my office soon after midnight Monday morning and sign the papers that in the meantime Mr. Durant would go free from custody opon his word of honor, and he appealed to the sureties, saying: ‘"We rely upon you, gentlemen, to see .that' he, attends.’ We then separated. I prepared the papers and had them lying upon my table when we met, pursuant to the arrangement. They were' read. ¡ Mr. Griswold took an active part, at this ■ meeting and, I think, read the papers- for himself.. The papers were signed without any objection or discussion at that time. Probably we were not together at my office more than ten minutes.” Referring tó the interview at the jail,. Bradley testified that nothing was said, to the best of his recollection and belief,, by any one, conveying the idea that the. complainants were to obtain from thq .defendant only a bail bond for his appéarance; and that “ the terms of the bond were-expressed, so as to exclude the idea that it was merely a bail for appearance, and to provide that it should be a bond to abide and perform the order of the court.” He further said that, the bond “ was to be a security,” and it was so announced. In all material respects his evidence was in accord, with the recollection of Peckham.
But there was other evidence which precludes our accepting the version of the affair given by 'those gentlemen. Gray,. Griswold, Durant and Yan Zandt, with more or less distinctness, but all emphatically, state that neither at the jail Saturday night, nor at the meeting before -daylight on Monday •morning, was there a hint, suggestion or proposition, in any *279form, that Durant sñould give bond, with sureties, conditioned that he would abide and perform the decrees that' might be rendered in the Hazard suit, or that any bond was talked of except one that would make the sureties responsible simply for his appearance in the State, so as to be subject to the-orders and process of the court. Gov. Yan Zandt testifies,, touching the meeting at the jail:. “It was proposed by Judge Bradley that Dr. Durant should give bond, with two sureties,. Which should be substituted for- the writ and the writ withdrawn. I then understood from the conversation that the bond was in the nature of a bail bond, and that when the sureties delivered Dr. Durant into the custody of the court, to-either perform its orders and decrees personally, or to suffer such penalties personally as the court might impose, .they would comply with the conditions of the bond. Nothing was said in my presence by any person inconsistent with these views.” , Again, referring to what took place at the time the bondwas actually signed, the same witness says: “A bond, 'prepared by Messrs. Peckham and Bradley, was handed to me, as counsel for Mr. Durant; -there was some little'discussion as to whether it should be made to the ' sheriff of Newport County, or to the complainants in the then suit:. Judge Bradley preferred the latter, and it was-so done. I told Mr. Durant that, in my opinion, it -was a proper‘.bond to secure his appearance in the suit, and the -bond was then executed.....I heard nothing said by Judge Bradley or Mr. Peckham, except what I have already stated. I myself told Mr. Durant that, in my opinion, the instrument was, in effect, a bail bond.”’ Further: “ Thére was nothing said, or intimated by any person-in my presence or hearing on that occasion to indicate that, the bond was a security instead of a surety.” The statements of Gov. Yan Zandt are fully sustained by the depositions of Gray, Griswold and Durant.
In view of this great preponderance of evidence upon the-side of the plaintiff, as to what occurred at the jail before the separation of the parties to meet Monday morning for the consummation of the business, the court is not at liberty to accept the account gi-ven by the defendants’ attorneys of *280the interview of Saturday night. And we have a strong conviction that the recollection of Griswold, Gray, Durant and Yan Zandt, as to that interview, is sustained by all the inherent probabilities. of the case. And in saying this, we would not be understood as reflecting upon the integrity of Hazard’s attorneys. The difference in the recollection of gentlemen, in respect to transactions in which they took part, often happens, without any reason to suspect that any of them ■would intentionally deviate from the line of absolute truth. Such differences existing, the court can only be guided by the weight of the evidence, where the witnesses are intelligent, of equal credibility, and had-equal opportunities to know what occurred. In the ..first place, it is not at all probable that Griswold would have executed the bond in question, as surety,if he had been informed, or believed, that it bound him absolutely, within the amount specified in such bond, for the payment of any sum adjudged against Durant — almost an' entire stranger to him.' In the next place, we cannot suppose that the counsel who went to the jail, to represent the interests of Hazard, had any other purpose in going there except-to see that that was, substantially, accomplished which the writ .of ne exeat authorized, namely, the obtaining of bail that would prevent Durant’s departure from the State without the leave . of the court, and thus have him, at all times, pending Hazard’s suit, subject to its rightful power in respect to any decree to.be rendered. That was evidently Bradley’s purpose, for, according to Peckham’s evidence, he suggested that Durant could effect his release by executing the bond specified in the writ. But when the nature of such a bond was explained, and it appeared that the necessity for Durant’s being out of the State on Monday rendered that course entirely impracticable, tthe.' latter Was then informed — according to the evidence of Peckham — thát he -could file an answer-and apply for the discharge of'the wyit immediately. What was meant by this suggestion % . It could 'have' meant but one thing,^ namely, that it was in the'power of Durant to obtain, without objection, if not of right, a discharge of the .writ, after answering, by executing a bond of some kind. Á party arrested *281upon ne exeat may obtain the discharge of the writ, upon motion or petition, and after notice, and according to some authorities,- “ it is a matter of course to order the ne exeat to be discharged, upon the defendant’s giving security to answer the complainant’s bill, and to render himself amenable to the process of the court pending the litigation, and to such process as may be issued to compel a performance of the final decree.. , . . Or, where the defendant cannot procure such security as will satisfy the sheriff, or if he wishes. to leave the State before the termination of. the suit, he may apply to the court to discharge the 'ne exeat upon his giving proper security to answer and be amenable to process; And upon such application, the court will take such security as it may deem sufficient, and will discharge the sheriff from' liability.” 2 Barb. Pr. 655-6; Mitchell v. Bunch, 2 Paige, 606, 621; Brayton v. Smith, 6 Paige, 489, 491; McNamara v. Dwyer, 7 Paige, 239, 244. See, also, Jacob’s Law Dict. Title, ne exeat regno; Johnson v. Clendenin, 5 G. & J. 463, 481. In' Griswold, Petitioner, 13 R. I. 126, determined September 20, 1880, Griswold, by petition, sought to be discharged from the bond in question ■on his'principal’s placing himself within the jurisdiction of the court and- subject to its orders and decrees. He seems to have proceeded, in that case, upon the ground that he was entitled, <jf right, to the order of discharge asked.' But the Supreme Court of Rhode Island did not accept that view, observing that'rt could not regard “ a bond to abide and perform .the decree as equivalé&fc. merely to a bond to abide the event of the suit.” . To do so, the^court said, would be to ignore wholly the word “ perform ” contained in the bond, which, upon its face, appeared to be given by agreement of thé parties. While it was there said, and properly, that the court , may require as a condition of the discharge of. a writ ne exeat, that the respqudént give security to'perform the decree — citing Robertson v. Wilkie, Amb. 177, and Atkinson v. Leonard, 3 Bro. C. C. 218 —'it was conceded that “ courts will generally discharge a writ of ne exeat upon th'e respondents’ giving security to abide the decree on the hearing of the suit.” If Durant had remained in Newport and, upon .filing his answer, had applied *282for the discharge'of the writ of ne exeat upon his giving bond with security simply to abide the decree, and place himself* when required, within the jurisdiction of the court, it is inconceivable that the state court would, under the circumstances, have denied his application. But it was further said in that case — and this is quite significant in its bearing upon another question to be presently adverted to — that “ even if the bond in question was to be considered as having no other effect than a bond to abide the decree made upon hearing the. cause, the petition could not be granted in the present stage of ■ the proceedings. No final decree in the cause has yet, been reached.”
As, therefore, Durant could have filed his answer,.and, conformably to the general rule, have obtained a discharge of the writ upon giving bond, with surety, that he would be amenable to the orders and process of the court; as he could not, consistently with his engagements, remain in Rhode Island long enough to have an answer prepared, and to move for the discharge of the writ, upon sufficient bond to be by him given; and as Hazard and his counsel expressed a desire that Durant should not be held in custody over Sunday, what more natural and equitable than that the parties should, by consent, bring about that which Durant must have understood from Bradley that he could accomplish, through the orders of the court, namely, have, a bond executed with surety compelling his presence in the State when .required by the orders of the court, or subjecting his sureties to personal liability if he did not render himself amenable to its process. If the suggestion that Durant could file his answer and apply to the court for the discharge of the writ (of course, upon bond securing his amenability to the process of the court) had been adopted, the plaintiff would not have obtained a bond making the surety absolutely responsible, within the penal sum named in the writ and bond, for a money decree against Durant. It is, therefore, unreasonable to suppose that the parties separated Saturday night under an agreement that Hazard should have from Durant a bond that would subject his sureties to a larger responsibility than was involved in the suggestion made that. *283Durant could obtain an order of court for the discharge of the writ. On the contrary, it is more reasonable to .suppose that the bond which, on Saturday night, was agreed to be executed on the next Monday morning, was one that would accomplish, by agreement of parties, precisely what Hazard’s attorney suggested that Durant might accomplish by an order of court. The agreement of the parties was thus made to take the place of an order of court, because Durant assured Hazard’s attorneys that he could not remain in Newport long enough to make a formal application for the discharge of the writ upon a proper bond.
We are of the opinion that, although the condition of the bond in question was that Durant should “abide and perform the orders, and decrees ” of the ■ court in the suit in which it was given, all the parties, according to the decided preponderance of evidence, intended it, at the time, as an instrument binding the sureties for the appearance of the principal so as to be amenable to the process and decrees of the court, upon default in which, and not before, were they to be liable to pay the penalty. If the bond means, in law, more than that and counsel in this court agree that it does — the case is one of a mutual mistake, clearly established:, as to the legal effect of the instrument. There was no mistake as to the mere words of the bond ; for it was drawn by one of Hazard’s attorneys, and was read by Griswold before signing it. But, according to the great weight of the evidence, there was a mistake, on both sides, as to the legal import of the terms employed to give effect to, the mutual agreement. In short, the instrument does not express .the thought and intention whibh the parties had at the time of its execution. And this mistake was attended by circumstances that render it inequitable for the obligees in the bond to take advantage of it. The instrument was drawn by one of Hazard’s attorneys, and was presented and accepted as embodying the agreement previously reached. Griswold was unskilled in the law, and took the word “perform” as implying performance in the sense of Durant’s becoming amenable to the process of the court. He had no reason — unless the recollection of Gray, Durant, Van *284Zandt and himself as to what occurred is wholly, at fault — to doubt that the bond expressed the real agreement; especially if he heard Van Zandt’s statement to Durant, when the latter was about to sign the bond, that it “ was, in effect, a bail bond.” 'A court of equity ought not to allow that mistake, satisfactorily established and thus caused, to stand uncorrected, and thereby subject a surety to .liability he did not intend to assume, and which, according to the decided preponderance of the evidence, there was at the time no purpose to impose upon him. While it is laid down that “a mere mistake of law, stripped of all other circumstances, constitutes no ground for the reformation of written contracts,” yet “ the rule that an admitted or clearly established misapprehension of the law ■does create a basis for the interference of courts of equity, resting on discretion and to be exercised only in the most unquestionable and flagrant cases, is certainly more in consonance with the best-considered and best-reasoned cases upon-this point, both English and American.” Snell v. Insurance Co., 98 U. S. 85, 90, 92; 1 Story Eq, Jur. § 138 e and f Redf. ed,; Stockbridge Iron Co. v. Hudson Iron Co., 102 Mass. 45, 48; Underwood v. Brockman, 4 Dana, 309, 316; Jones v. Clifford, 3 Ch. D. 779, 791, 792; Canedy v. Marcy, 15 Gray, 373, 377; Green v. Morris & Essex Railroad Co., 1 Beasley, 165, 170; Beardsley v. Knight, 10 Vermont, 185, 190; State v. Paup, 13 Arkansas, 129; 2 Leading Cases in Eq. pt. 1, 979 to 984; 2 Pomeroy’s Eq. §§ 843 to 847.
The conclusion reached upon this branch of the case is the only one consistent with fair dealing towards those who were willing to become sureties for the appearance of Durant. If it be not justified upon the ground of mistake as to the mutual agreement, superinduced by the conduct of the party seeking now to take advantage of it, there could be no escape from the conclusion that; the taking of a bond that made Griswold absolutely liable as surety, for any amount adjudged to.be due from Durant, and not greater than the penal sum named, was, under all the circumstances disclosed, a fraud in law upon him. If the attorneys of Hazard intended to obtain, by means of a bond, more than he was entitled to by such a. bond as the writ *285of ne exeat called for, and more than the court would ordinarily have given them, upon Durant’s application to discharge the writ; if they intended to secure a bond that would make Griswold personally liable, within the penal sum, for any money decree passed against Durant, then a fraud was perpetrated upon him, which entitles him to relief; for, according to the decided preponderance of the evidence, it must be assumed that Hazard’s attorneys knew that he signed the bond in the belief that, pursuant to the previous understanding, it was one to secure Durant’s appearance, nothing more, and yet they failed to inform him, at the time, that it was drawn so as to impose upon him a much larger responsibility. Their silence upon that question was, under the circumstances, equivalent to a direct affirmation that the bond meant what Griswold supposed it did. In view of what passed at the jail on Saturday night, their duty was, by sufficient explanation, to correct the misapprehension under which he evidently labored. Besides, there can be no doubt, under the evidence, that the agreement to discharge the writ was reached without consultation with Griswold. No one of the witnesses states that he was consulted about that matter, or that he was informed as to the legal result of an agreement or ordef to discharge the writ. He testifies that he knew nothing of any such agreement. So, that, while Hazard’s attorney, according to his evidence, Was preparing a bond that would bind Gris-wold'" absolutely to pay any decree, not in excess of $53,735, that might be rendered against one who was almost a stranger to him, and who, Hazard stated in his bill, was then engaged in hazardous speculations and was in a precarious condition pecuniarily, he was, as the representative of Hazard, under an agreement with Durant, of which Griswold had no knowledge, that the writ of ne exeat should be discharged; thus compelling the surety to risk the insolvency of the principal, and putting it out of his power, for his own protection, to surrender the principal, and obtain the cancellation of the bond, as, in that case, the surety might have done, if the bond had been, as he supposed it was, one simply for the appearance of Durant. The concealment of this agreement from Griswold *286was, under the circumstances, a wrong to him. “ The contract of suretyship,” says Mr. Story, “ imports entire good faith and confidence between the parties in regard to the whole transaction. Any concealment of material, facts, or any express or implied misrepresentation of such facts, or any undue advantage taken of the surety by the creditor, either by surprise or by withholding- proper information, will undoubtedly furnish a sufficient ground to invalidate the contract.” Again : “If a-party taking a guaranty from a surety, conceals from him facts which go to increase his risk and suffers him to enter into the contract undef false impressions, as to the real state of the facts, such a concealment will amount to a fraud, because the party is bound to make the disclosure.” 1 Story’s Eq. Jurist §§ 324, 215. To the same effect are Franklin Bank v. Cooper, 36 Maine, 180, 196; Smith v. Bank of Scotland, 1 Dow. 272, 292; Railton v. Mathews, 10 Cl. & F. 935, 943; Small v. Currie, 2 Drewry, 102, 114; Phillips v. Foxall, L. R. 7 Q. B. 666, 672; Pidcock v. Bishop, 3 B. & C. 605; Adams’ Equity, § 179. But we do not rest our decision upon any ground of fraud in law or fraud in fact. We acquit the attorneys of Hazard- of any desire or purpose to do injustice to Griswold, or to commit a fraud upon him. But we are constrained, by the .settled rules of evidence, to hold, as already indicated, that their recollection of the circumstances under which, the bond of August 24 was executed is materially at fault, and that the alleged mistake is established by convincing proof.
But it is said that Griswold was guilty of such laches in seeking the relief now asked, that he is not entitled to the aid of a court in’'equity. This position is based principally upon what' Peckham says occurred between him and Griswold in the fall of the year after, the execution of the bond. Peck-ham testifies: “ About the last of October or the 1st of November, 1868, along that time, I met Mr. Griswold on Thames Street, in Newport, near my office. He spoke of this bond, as if it were a bail. bond. I said, ‘No; it is a bond upon which you may be liable to pay money. If, for example, the court should find„a judgment against Durant for any suni of money *287and he did not,pay it, you could be held for the amount named in these bonds.’ ' He said, £ Well, I guess you are right, but I must see Durant about it. He must do something about it.’ I asked him, £ Why, he is rich enough, isn’t he ? ’ and Mr. Griswold said, ‘Yes; he is rich enough, but he is reckless, and there is no telling how long such a man may stay rich, and he must -give me security.’ I would like to add here that I mentioned this to Mr. Honey last winter. Mr. Honey said that he was confident, from conversations he had had with his client, Mr. Griswold, that Mr. Griswold had no recollection of any such conversation with me, and I replied that if Mr. Gris-wold did not recollect it I should hesitate about swearing to it, and that I did not think I would swear to it under those .circumstances, and that certainly I would not like to do so. «till I have felt bound to state it here, upon further reflection with these explanations.” If this be a correct statement of what passed between Peckham and Griswold, upon the occasion referred to, it is significant as showing that months after the bond was executed Griswold spoke of it as a bail bond. His declaration, after Peckham’s explanation of its terms, “ I guess you are right,” naturally meant no more than a courteous acquiescence, without discussion, in the opinion expressed, by one learned in the law. Griswold, while recalling the fact that he expressed to Peckham his belief that it was a bail bond, denies explicitly that he, on that or any other 'Occasion, ever admitted that it was other than a bail bond.
Besides, there was no absolute necessity for Griswold’s moving in the matter until after some decree was passed against Durant, and until an attempt was made to hold him personally responsible for the amount of the bond. He made an effort in Griswold, Petitioner, 13 R. I. 125, to be dischargéd from his bond upon the principal’s placing himself, within the jurisdiction of the court. But, as we have seen, the court, after .declining to discharge the bond, said, that even if the bond in question was to i ' considered as having no other effect than a bond to abide the decree made upon hearing the cause, the petition for its discharge would not be considered by it until a final decree was passed. The judgment in that case *288was passed September' 30, 1880. Notwithstanding this announcement, and doubtless because of the intimation that the bond meant more in law than he supposed, Griswold commenced the present suit more than a year before the decree was rendered against Durant, and before the action at law was brought on the bond. Under the peculiar circumstances of this case we think the defense of laches is without substantial merit. Whether laches is to be imputed to a party seeking the aid of a court of equity depends upon the circumstances of the particular case. There are no circumstances here that would justify a refusal to grant the relief asked because of Griswold’s delay in instituting suit to have the bond cancelled or reformed.
In the view the court takes of this case, the proper decree to make, if Durant were living, would be one reforming the bond of August 24, 1868, so as to make Griswold liable for the penal sum named only in the event that the principal failed to appear and become subject to the orders and decrees of the court in the suit in which the writ of ne exeat was issued. But such a decree would not now be appropriate. Under the circumstances, the only decree that will accomplish the ends of substantial justice is one perpetually enjoining the prosecution of. any action, suit or proceeding to make him liable in any sum. on or by reason of said bond. •
We come now. to the action at law, No. 53, in which there was agudgment against Griswold on the bond of August 24, 1868, for the sum of $66,470. It is assigned for error that the court sustained the demurrers to. the original second, third, fourth and fifth pleas, ordered the amended third, fourth and fifth pleas to be stricken from the files, and denied the defend-. ant’s motions, at the trial, for judgment; on hi's eighth and ninth pleas. It has been assumed in argument that the record in this case substantially presents among other questions, the following: 1. Whether the bond of August 24,1868, was not obtained by such fraud and concealment as-rendered it void as against Griswold? 2. Whether upon the face of the record of thé equity suit in which the order or decree of December 2, 1882, was rendered, the court was not without *289jurisdiction of the subject matter of that suit, the essential object of which, it is argued, was to administer the affairs, and distribute the assets, of a Pennsylvania corporation, by means of decrees and orders of a court in Rhode Island ? 3. "Whether simple duress operating only on the principal in the bond could be taken advantage of by the surety? 4. Whether the plaintiffs, notwithstanding the stipulation of Griswold’s counsel, at the trial, that they were able to prove, under the decree of December 2,1882, “ an amount of damage in excess of the penal sum of the bond declared on,” could maintain an action on the bond for that or any other sum, until it was ascertained and adjudged in Hazard’s equity suit what distinct part, if any, of the $16,071,659.97 for which Durant was adjudged by the Supreme Court of Rhode Island to be accountable to the Credit Mobilier of America, actually belonged, or would be ultimately awarded, to the obligees in the bond?
These questions have been argued by the counsel of the respective parties with signal ability, and their importance is recognized. But in view of the present condition of the record .of this case, it is not deemed best now to discuss them. The ground upon which the court below ordered the amended pleas to be stricken from the files does not appear. ■ It may be that the motion was treated as a formal demurrer (Slocomb v. Powers, 10 R. I. 255), or was granted, because, in the judgment of the court, the amended pleas did not materially change the defence as presented in the pleas to which special demurrers were sustained, and were not, therefore, fairly embraced by the stipulation made by counsel for their being filed. But, in our judgment, the amended pleas were much broader, as well as more specific in their averments, than were the original pleas; and the questions arising upon them could have been more appropriately raised by demurrer. Smith v. Carrol, 17 R. I. July 19, 1890. We are more willing to make this disposition of the case, because of the decision in case No. 50 in respect' to Griswold’s liability upon the bond sued on. In view of what has been there said, the discussion of the above questions would seem, to be unnecessary.
The demurrer to the bill in No. 51 was properly sustained. *290The error, if any, committed by the Supreme Court of Rhode Island in not allowing the release, executed to Durant by the receiver in the Pennsylvania court of the Credit Mobilier of America, to be interposed as a defence in the suit brought by Hazard against Durant and others, could not be corrected by bill in equity, |iled by a surety on the bond of August 2é; for the reason, if there were .no other, that the release was delivered prior to the judgment in the state court constituting the basis of the action at law on the bond.
The demurrer to the bill in case No. 52 was also properly sustained. In that case the validity of the proceedings in the Supreme Court of Rhode Island, by Hazard against Durant and others, was assailed upon the ground that the bill in that suit did not sufficiently show tbgt any effort had been made by Hazard, the plaintiff therein, and who sued as stockholder, to procure corporate action against Durant' by the Crédit Mobilier of America. It is only necessary to say that this ground presents only a question of mere error in the judgment of the state court, and does not affect its jurisdiction.
The deeree in suit No. '50 must be reversed, with directions to enter a new deeree perpetually enjoining the defendants therein, and each of them, from, prosecuting a/ny suit, action or proceeding,, against Griswold on the bond executed by him on the 2Ifth of August, 1868, as one of the sureties of Thomas C. Durant; the decrees in "cases Nos. 51 and. 52 must be affirmed ; <md the judgment in the action at law, No. 53, must be reversed with directions for further proceedings nott inconsistent with this, opinion. Griswold is entitled to his costs in this court in cases 50 and 53, am.d the appellees in the other cases a/re entitled to their costs here as against Griswold. It is so ordered.