1 U.S. 420 (1789)

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U.S. Supreme Court


1 U.S. 420 (Dall.)

Hamilton, Executor
Callender's executors.

Supreme Court of Pennsylvania

April Term, 1789

This action being referred by consent, the following report was made: 'The Referrees upon full consideration of all the circumstances, are doubtful as to the law upon one point, and have agreed to make their award special, subject to the opinion of the Court.

    'The case submitted to them appeared to be as follows: On the 16th of March, 1773, Robert Callender was indebted to James Hamilton in the sum of L2120. sterling, for which he gave to the said James Hamilton, a bond and warrant of attorney, and a mortgage upon an estate in the county of Cumberland. It appeared that interest was paid thereon to March 1776, and that receipts for such payments are indorsed on the mortgage.
    'Robert Callender died, and, sometime after, his executors sold part of the mortgaged premisses to Mark Bird, who undertook to pay off the principal sum, together with the interest that should become due after the date of his purchase.
    'It is agreed that James Hamilton remitted one year's interest to the executors of Callender; and that Mark Bird gave his bond bearing date the 3rd of May, 1783, to James Hamilton for L651. sterling, being the whole of the interest then due on the mortgage, exclusive of the year's interest remitted. No discharge was given upon the mortgage either for the year's interest remitted, 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 interest after the sale to Bird.
    'Bird has never paid any part of the principal, or interest; and, in the end of the year 1784, a Scire Facias issued on the mortgage; but the sale was postponed from time to time; and, in the meantime, Bird became a bankrupt. On the 19th of May, 1787, however, the estate held by Bird was sold under the Scire

    Page 1 U.S. 420, 421

    Facias for L5,500: and another part of Callender's estate was sold under the same execution for about L1000. 'The point which the Referrees wish to submit to the opinion of the Court is: 'Whether James Hamilton by taking the bond from Bird, under the circumstances stated, has exonerated the executors of Callender from the payment of L651. sterling, the sum for which the said bond was given? Or, 'Whether the mortgaged premisses are bound to the executors of Hamilton, notwithstanding the said bond? 'If the Court shall be of opinion that the estate of Callender is exonerated from so much of the interest 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 last (when the premisses were sold) for principal and interest upon the mortgage, L4988. 18.2. current money of Pennsylvania. But, nevertheless, if the Court should so determine, the Referrees award, that the whole of the money arising from the sale of that part of the mortgaged premisses belonging to Bird, and which is stated to have sold for L5,500, should be applied, in the first place, to the payment of the aforesaid sum of L4988. 18. 2. and the residue to so much of Bird's bond to Hamilton as it will extend to. 'But, if the Court shall be of opinion, that the executors of Caliender are not exonerated from the payment of so much of the interest as the bond aforesaid specifies, then we award, that there was due from the Defendants to the Plaintiff on the 19th day of May last, the sum of L6264 18. 7. current money aforesaid.' Whether the bond given by Mark Bird to the Plaintiff's Testator operated as an extinguishment of so much of the money due upon Callender's mortgage, was the question? And it was argued in July Term 1788, by Lewis and Wilcocks, for the Plaintiff; and by Wilson and Brad ord, for the Defendant. For the Plaintiff, it was contended, that the bond in question was taken merely as a collateral security, in order to entitle Hamilton to interest upon the amount. The Report (though it is sufficient to give judgment upon) does not say that it was received or given in satisfaction; it is, therefore, to be presumed, that no evidence of that kind was submitted to the Referrees, and the Court must determine the law upon the facts contained in the Report. But, even if the Report were amended, and it were expressly set forth, that the bond was given and received in satisfaction, it would not be an extinguishment of the preceding demand, founded on the mortgage. The rule is clear, that a subsequent security of equal dignity is not an extinguishment, so as to annihilate the party's remedy upon his original contract; for that purpose the security must be of a higher nature. Nor will the mere improvement of the security, by adding another surety, amount to an extinguishment. [1 U.S. 420, 422]

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