Page:United States Reports, Volume 1.djvu/433

422 

1789.

''Cro. J.'' 579. Hub. 68. 69. Moor 872. ''Cro. C.'' 85. 86. See 2. ''Bac. Abr.'' 452. Whether, indeed, by accord or nor, one bond is not an extinguifhment of another ; 3 Lev. 55. Brownl 47. 71. Nay, the party's own agreement to accept is not fufficient ; for, it muft appear to be a reafonable fatisfaction. 1 Stra. 426.7.

The bond given by Bird was certainly not of a higher nature than the previous fecurity ; it was, in fact, inferior ; for a mortgage is a fecurity on real eftate, a bond is only perfonal; and, in the cafe of a bankruptcy, though neither bonds, or judgments, ftated againft the general creditors, yet mortgages do.

For the Deƒendants; it was urged, that the legal doctrine of collateral extinguifhments does not apply ; for, fome cafes go further than thofe produced, and fhew that an eftate worth of a million, would difcharge a bond conditioned for the payment of Ł10. Yet, at common law, the doctrine appears to differ from what the adverfe counfel with to eftablifh ; Co. Litt. 212. b. though, it muft be admitted that many fubfequent decifions have greatly deviated from the principle laid down by Lord Coke, that the party's acceptance of any thing, proved it be not of lefs value than the original contract, in fatisfaction, is fufficient. But, notwithftanding the admiffion that the authorities feem now to extend fo far, that a bond from the fame party encreafing the fum, or, even where another furety is added, will not be a difcharge of a prior obligation ; yet none of them are fo extravagant as to affert, that it is no difcharge where the advantage of converting intereft into principal has been obtained ; which is in itfelf a reafonable fatisfaction to ground the extinguifhment ; and, independent of the cafes, the broad principle of equity declares, that, when a party is bettered by his bargain, he fhall be bound by it.

But, it appears from the report of the Referrees, that there was an abfolute giving and taking of the bond ; and, as the payment muft be according to the will of the Defendant, ''Cro. E'' 68. if Bird gave the bond in queftion in payment, we fhew that it was accepted, and it is no matter whether that acceptance was in fatisfaction,, or not, fince the bond muft be received to the intent with which it was given. 1''Ld. Raym.'' 60.61

The cafe, however, does not, after all, depend upon the doctrine of extinguifhment, but upon the act for defalcation ; by virtue of which the acceptance of the bond in queftion may be given in evidence by way of fet-off againft the Plaintiff's demand. 1 State Laws. 48.

For the Plaintiƒƒ, in reply, it was infifted, that the object of the act of defalcation was to prevent a multiplicity of fuits, and that it could have no poffible effect upon the general queftion, whether Bird's bond operated as a payment or extinguifhment pro tanto of the preceding debt ? This queftion has been agitated in England as well fince as before the ftatute, and the prefent idea has never been fuggefted. The act of Affembly fpeaks of two or more being mutually indebted ; and, although it authorizes a tion,