Page:United States Reports, Volume 1.djvu/432

Rh 

1789.

“ Facias for Ł5.500 : and another part of Callender's eftate was

“ fold under the fame execution for about Ł 1000.

“The point which the Referrees wifh to fubmit to the opinion

“ of the Court is:–

“Whether James Hamilton by taking the bond from Bird, under

“ the circumftances ftated, has exonerated the executors of Challen-

“ der from the payment of Ł651 fterling, the fum for which the

“ faid bond was given? Or,

“Whether the mortgaged premiffes are bound to the executors

“ of Hamilton, notwithftanding the faid bond?

“If the Court fhall be of opinion that the eftate of Callender

“ is exonerated from fo much of the intereft as the bond of Bird

“was given for, then we find, that there was due to the executors

“ of Hamilton on the 19th of May laft (when the premiffes were

“ fold) for principal and intereft upon the mortgage, Ł4988. 18.2.

“ current money of Pennʃylvania. But, neverthelefs, if the Court

“fhould fo determine, the Referrees award, that the whole of the

“ money arifing from the fale of that part of the mortgaged pre-

“ miffes belonging to Bird, and which is ftated to have fold for

“Ł5,500 fhould be applied, in the firft place, to the payment of

“the aforefaid fum of Ł4988. 18. 2. and the refidue to fo much “ of Bird's bond to Hamilton as it will extend to.

“But, if the Court fhall be of opinion, that the executors of

“Callender are not exonerated from the payment of fo much of

“the intereft as the bond aforefaid fpecies, then we award, that

“ there was due from the Defendants to the Plaintiff on the 19th

“ day of May laft, the fum of Ł 6264. 18.7. current money afore-

"faid.”

Whether the bond given by Mark Bird to the Plaintiff's Teftator operated as an extinguifhment of fo much of the money due upon Callender's  mortgage, was the queftion? And it was argued in July Term 1788, by Lewis and Wilcocks, for the Plaintiff ; and by Wilʃon and Bradƒord,  for the Defendant.

For the Plaintiƒƒ, it was contended, that the bond in queftion was taken merely as a collateral fecurity, in order to entitle Hamilton  to intereft upon the amount. The Report (though it is fufficient to give judgment upon) does not fay that it was received or given in fatisfaction ; it is, therefore, to be prefumed, that no evidence of that kind was fubmitted to the Referrees, and the Court muft determine the law upon the facts contained in the Report.

But, even if the Report were amended, and it was exprefsly fet fourth, that the bond was given and received in fatisfaction, it would not be an extinguifhment of the proceeding demand, founded on the mortgage. The rule is clear, that a fubfequent fecurity of equal dignity is not an extinguifhment, fo as to annihilate the party's remedy upon his original contract; for that purpofe the fecurity muft be of a higher nature. Nor will the mere improvement of the fecurity, by adding another furety, amount to an tinguifhment.