HAMILTON EXOR. verʃus CALLENDER'S EXORS.
T
HIS action being referred by confent, the following report was made:–“ The Referrees upon full confideration of all“ the circumftances, are doubtful as to the law upon one point,
“ and have agreed to make their award fpecial, fubject to the opi-
"nion of the Court. <
“ The cafe fubmitted to them appeared to be as follow:– On
“ the 16th of March, 1773, Robert Callender was indebted to James
“ Hamilton in the fum of Ł2120, fterling, for which he gave to
“the faid James Hamilton, a bond and warrant of attorney, and a
“ mortgage upon an eftate in the county of Cumberland. It ap-
“ peared hat intereft was paid thereon to March 1776, and that
“ receipts for fuch payments are indorfed on the mortgage.
“ Robert Callender died, and, fometime after, his executors fold
“ part of the mortgaged promiffes to Mark Bird, who undertook to
“ pay off the principal fum, together with the intereft that fhould
“ become due after the date of his purchafe.
“ It is agreed that James Hamilton remitted one year's intereft
“ to the executors of Callender ; and that Mark Bird gave his bond
“ bearing date the 3d of May, 1783, to James Hamilton for Ł651
“ fterling, being the whole of the intereft then due on the mort-
“gage, exclufive of the year's intereft remitted. No difcharged
“ was given upon the mortgage either for the year's intereft re
“ mitted, or for the amount of the bond: nor does it appear, that
“ the executors of Callender had any notice of the bond, or that
“ they had been applied to for the payment of any intereft after the
“ fale to Bird.
“ Bird hasnever paid any part of the principal, or intereft ;
“ and, in the end of the year 1784, a Scire Facias iffued on the
“ mortgage ; but the fale was poftponed from time to time ; and,
“ in the meantime, Bird became a bankrupt. On the 19th of May,
“ 1787, however, the eftate held by Bird was fold under the Scire
“ 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
1789.
extinguifhment 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. 1Ld. 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 defalcation it does not define what ſhall be deemed a payment or exinguiſhment.
There is no fair ground to aſſert that Hamilton received an adequate ſatisfaction by converting the intereſt into principal; for, he was entitled to have his intereſt punctually paid; and the books of Chancery have gone ſo far as to declare, that, where money is in arrear upon a mortgage, it was not uſury to take intereſt upon the intereſt. In the caſe from Cro. J. 579 indeed, the intereſt was alſo added to the principal; but this the Court did not confider a ſufficient bar. Nor was Hamilton benefitted in reſpect to time; for, the bond was given, not to ſhorten the period of payment, but to protract it; as the money was actually due, and ought to have been previouſly paid.
After conſidering the cafe and arguments, the Chief Justice, at the preſent term, delivered the opinion of the Court.
M‘Kean, Chief Juſtice.–The caſe appears to be this:–That the Teſtator of the Defendants gave a mortgage to the Teſtator of the Plaintiff on four ſeveral tracts of land. The heirs of the mortgagor ſold the equity of redemption of three of theſe tracts to Mark Bird, who, afterwards (on the 3d day of May 1783,) executed a bond for £651. to the mortgagee; and this bond, being for the amount of the intereſt then due upon the mortgage, alſo bore intereſt. No receipt, however, for the bond, for the intereſt, nor, indeed, any minute of the proceeding, was entered upon the mortgage, nor has any expreſs proof been offered that the bond (upon which there has been any thing paid) was accepted as a ſatisfaction pro tanto of the money due on the mortgage. The three tracts of land conveyed to Mark Bird have been fold in order to ſatisfy the mortgage; but, proving inſufficient, the queſtion now ariſes, on the circumſtances which I have ſtated, whether the bond given by Mark Bird is to be taken, either in law or equity, as a payment, diſcharge, or recompenſe, for ſo much of the mortgage money?
The Court, is having maturely conſidered the caſe, are of opinion that the bond is not a payment pro tanto of the mortgage money: for which opinion they will content themſelves with declaring the general principles, and referring to the authorities whence thoſe principles are deduced.
1. Firſt, then, one judgment cannot be pleaded in bar of another, which is of equal nature and dignity, no more than one bond, or obligation, can be pleaded in bar of another. Cro. E. 817. 2 Bac. Abr. 552.
2. In the ſecond place a bond, which is no ſatisfaction of another bond, cannot be deemed a ſatisfaction of a mortgage, which is a ſecurity of a higher nature. To render it a ſatisfaction, it ought to better the Plaintiff’s cafe, in point of ſafety, and expedite the time of payment; for, a bond with ſureties will not be a ſatisfaction of one without, unleſs the time of payment is thereby
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.