Majority
p. 406Day and Penfield, against Leal and Leal. NEW-YORK, October, 1817.
Headnote
A writing signed by the plaintiffs. ln, ^hj?h ‘hey and0w1rranbt°of themltnd state conditions8 on”1 gwen!thIs7 '7vT- partceóf the del eatisten’ceorthe rant without producing them. a collateral security of a libond”and war-which'jude-’ ”oe”tnot.aext1nt if contract!Sa¡ mafns38 unsatisfiedwhere the Setweeu""?? and nforPaother unoriginal one exact amount of that debt, it will to taken «iMjt miy as collate-THIS was an action of assumpsit, and was tried before V J Mr. J. Platt, at the Delaware circuit, in June, 1817.
The plaintiffs gave in evidence two promissory notes, payable to them, and executed by the defendants, one for 1951 dollars and 61 cents, and the other for 279 dollars and 46 cents, The defendants offered in evidence, under the general issue, in bar of the action, the following writing: “ Whereas Robert Leal, (one of the defendants) has executed to us (the plaintiffs,) a bond, dated this day, for 5,000 dollars, conditioned to pay ’ 2,500 dollars, and also a warrant of attorney of the same date, 7 7 / ' ®nt®r up a judgment; Now, therefore, it is agreed,' that if ^le said Robert Leal shall, within eight months from this date, pay, by instalments, the amount due from Robert Leal Co* (the defendants,) to Orvin Day & Co. (the plaintiffs;) also the amount due from Robert and David Leal to OrvinDay Co. also the amount due from Robert Leal to Orvin Day,'also the amount due from Leal, Foote §r Co. to Orvin Day A* Co. then this judgment shall be destroyed. July 17th, 1816. OrvinDay fy Co.” This evidence being objected to, was admitted by the judge, who permitted the plaintiffs to take a verdict for the balance due them, subject to the opinion of the court, whether the evidence offered was admissible under the general issue, and if admissible, whether it was a defence to the action.
The case was submitted to the court, without argument.
The receipt given by the plaintiffs, which acknowledged the giving of the bond and warrant of attorney by Robert Leal, to .the plaintiffs, was sufficient evidence of the existence of such bond and warrant, without the production of them. This was not barely a receipt for the bond,and warrant, but contained the terms and conditions upon which they were-given, and upon which the judgment to be entered up thereon was to become void. The question is, whether such bond was an extinguishment of the simple contract debt. We think it was not; it is very evident it was not intended, by the giving of the bond, to change the nature of the debts.
p. 407
(1 Chitty PL 96. 3 East, 251.' 2 Leon. 110. Bac. Abr. tit Ex~ tinguishment, (£).) 6 Crunch, 254.) The bond, in this case, was for a round sum ; and there was no way to ascertain the real sum due upon it, but by reference to the original demand, which must, of course, be deemed in existence, and in force. The plaintiffs are, accordingly, entitled to judgment for the amount of the notes. 1t was not between the same parties ; nor was it for this' debt alone, nor for the exact amount of the notes in question. It was, therefore, only intended as a collateral security ; and the taking a collateral security of a higher nature, whether from the principal or a stranger, does not preclude the creditor from suing on the first contract, although judgment may have been entered on such collateral security, if it remains unsatisfied.
Judgment for the plaintiffs.