Page:United States Reports, Volume 1.djvu/435

424 

1789.

fhortened. 1Stra. 427. 1Brownl.47. 71. Hob. 68. 69. 1Mod. 225. 2Mod.136. ''Cro. I.'' 579. ''Cro. C.''85.86. 3.Lev. 55. 1Salk. 124. 1Burr. 9. 2Wils. 87.

3. And, in the third place, as there is no entry of the bond in queftion upon the mortgage, fhewing that it was received in payment of fatisfaction of the intereft then due, nor any proof that it was fo intended by the parties, a prefumption naturally arifes, that the bond was merely taken as a collateral, or fupplementary, fecurity ; and no debt, or duty, can be extinguifhed, but by a fecurity of a higher nature than the firft.

For thefe reafons, we decide the queftion fubmitted by the Referres to the Court, in favor of the Plaintiff, and direct judgment to be accordingly entered upon the report. 

HE Plaintiff was examining a witnefs to prove the purport of an order given to him by the Adjutant General, during the late war, for the reftoration of his horfe, faddle and bridle, which had been feized by the Defendant, as the property of a difaffected perfon, although upon trial the Plaintiff was acquitted, when Levy objected, that the order itfelf ought to be produced, or fome account given of its lofs, before the witnefs was admitted to give evidence of its contents.

M‘KEAN, Chieƒ Juʃtice.– The oath of the Plaintiff muft be received to prove what has become of the order. Is is, I think, the only way in which fatisfactory information can be obtained on a point of this nature.

The Plaintiff, being accordingly fworn, and proving the lofs of the order, he was allowed to proceed in examining the witnefs as to its contents. 

JECTMENT for a houfe and lot in Second ʃtreet, in the city of Philadelphia.  The action was tried by a Jury at bar, in January term, 1788, and a verdict given for the Plaintiff. A motion was then made by the Defendant's counfel for a new trial, which was argued, in favor of the new trial, by Lewis and Heatly, and, againft it, by Ingerʃol and Sergeant, in January term, 1789 ; and, the Court having continued this caufe under advifement, gave their opinion in the prefent term.

The cafe, upon the evidence, was as follows:– Dorothy Gordon, being feized in fee of the moiety of the premiffes in queftion, termarried