Case where the other security extinguished by the act of the creditor. could not have been pleaded; for the obligor must have pleaded that he, or some one by his authority and on his behalf, had paid the debt for him; nor could acceptance by the obligee in satisfaction be pleaded; for that must also be acceptance in satisfaction of the obligation, and it was clear that the payment was made and the satisfaction given in respect, not of the bond of 1812, but of the bond of 1816, in which Whaley was an obligor; that in deciding Copis v. Middleton, Lord Eldon expressly admitted that where a mortgage has been given in further security for the same debt, the surety, who paid off the specialty, was entitled to an assignment of the mortgage; and so if there was but one specialty, viz. the mortgage, because there the payment did not, as in the case of a bond, extinguish the security without a reconveyance, and there was something to assign or transfer ; that it was impossible, in principle, to distinguish the case so put from the case under consideration; that the ground of debt was the same in the mortgage and the bond, as it was the same in the bond of 1812 and 1816; that paying off the mortgage debt would have effectually excluded the mortgagee from any recourse against the estate in equity; and so would paying the bond of 1816 have prevented in equity the obligee from suing on the bond of 1812, and might possibly have called, from the Court of Common Law in which any such action was brought, an order to stay proceedings on it. Yet the original security subsisted, as the mortgage subsisted, notwithstanding the discharge of the second security, and the inability of the creditor to avail himself of it in an equitable point of view, so as to have double satisfaction of his debt. It subsisted as the mortgage did, only to the effect of clothing the surety with that creditor's rights against the principal debtor.-Hodgson v. Shaw, 3 Mylne & Keen, 183, 193-196. Lord Harberton granted to Bennett and his heirs a mansionhouse and lands, in consideration whereof Bennett covenanted to pay a yearly sum and to repair. Wildridge, as Bennett's surety, executed a mortgage to Lord Harberton to secure Bennett's performance of the covenants. There being a large sum due for rent, and the premises being in a ruinous state, a bill was now filed by Lord Harberton against Wildridge's executors, praying an account of what was due by Bennett for rent, and of what sum would be required to put the premises in repair; that the money might be paid, or foreclosure of the mortgaged premises. But it appeared that since the filing of the bill Lord Harberton had, for a nominal consideration, taken from Bennett a reconveyance of the above mansion-house and premises. Lord Chancellor Hart said, that according to the relation the parties stood in at the filing of the bill, the relief sought by Lord Harberton was of course. He was entitled to have the account taken, and the sums due to him raised by sale of the estate pledged to him by Wildridge; but then the representatives of Wildridge, as sureties for Bennett, would have a right to resort to the estate pledged to [reconveyed to] Lord Harberton, and to require Lord Harberton to arm them with all his rights and remedies against Bennett and the estate for their reimbursement, so far as such rights and remedies could be transferred to them, consistently with the preservation of his own paramount title over the estate for payment of his future rent and performance of covenants; that this right of the surety, who pays the debt of another, to the benefit of subsidiary securities belonging to the principal is the common equity of the Court; but these several rights and reciprocal remedies had been extinguished by Lord Harberton, whose act had deprived the representatives of Wildridge of their remedy over; that as part of his own evidence Lord Harberton had proved a deed, dated 6th March, 1823, whereby Bennett, in consideration of 10s., reconveyed the estate to him and his heirs; a subsidiary fund, therefore, which Wildridge's representatives were entitled to resort to for indemnity, had been taken from them by Lord Harberton, and for that reason Lord Harberton was not entitled to have the relief he prayed against the estate of Wildridge; that it had been said that the estate was not worth the annual reserved rent, and therefore that the reconveyance to Lord Harberton was no detriment to the representatives of Wildridge; but of that Lord Harberton had no right to judge for them. It had in other cases been argued, that a creditor giving time to a principal may have benefited the surety, and therefore his liability ought not to be affected; but it had always been answered that the creditor had no right to judge for the surety what was best for him. Lord Harberton v. Bennett, Beatty, 386. entered up Afterwards Blanc and Hill, as his surety, executed a bond to Kelly, and (a) No doubt the judgments were entered up in separate actions. surety pays Separate judgments [in separate actions] against principal and surety and the latter pays that against himself: assignment made of the other judgment: and the principal, upon scire facias, pleads payment of the judgment against the surety, and that both judgments were recovered for the same debt. amount of the debt and costs, provided Kelly would assign to him the separate judgment against Blanc: and upon Kelly's refusal, a bill in the Court of Chancery in Ireland was filed, to compel him to do so. On the part of Kelly, the above case of Woffington v. Sparks, ante, page 624, was cited; and it was insisted that the payment by Hill might be pleaded by Blanc. Lord Clare nevertheless pronounced a decree for the assignment prayed. Hill v. Kelly, Ridgeway Lapp & Schoales, 265. In Purdon v. Purdon, Hudson & Brook, 229, 248, Mr. Justice Vandeleur said, that in the case of Hill v. Kelly, Lord Clare (recently after he had ceased to practise in Courts of Law), decreed the assignment of the judgment to the plaintiff in the suit, and, in so doing, must have conceived that a plea of payment by the surety would be bad; otherwise he would not, it was to be presumed, have decreed an assignment of the judgment. It could not be supposed, that he would have directed an assignment, which would, at law, be a nullity; and it was to be observed that Lord Clare's attention was directed, in the course of the argument, to the very point. George Purdon v. Robert Purdon, Hudson & Brooke, 229. Robert Purdon and George Purdon were jointly and severally bound to Mary Swift in a bond for 500l., and for securing such bond they executed to her a warrant of attorney, for confessing one or more judgments, upon one or more declaration or declarations against them, or either of them, by himself, for the whole debt. By virtue of this warrant of attorney, Mary Swift, in 1816, recovered separate judgments [in separate actions] in the Court of Common Pleas in Ireland against Robert Purdon and George Purdon and in 1818 she, under the Irish Act, Geo. 2 (a), assigned the said judgments to Swift and Jolly. In 1821 Swift and Jolly sued out a scire facias upon the separate judgment against George Purdon, to which the sheriff returned nihil: whereupon an alias scire facias issued, and nihil being also returned, judgment was given that Swift and Jolly should have execution against George Purdon. Under this execution the debt was levied, and satisfaction was entered upon the record. George Purdon having been the surety of Robert Purdon, thereupon procured Swift and Jolly to assign to him the separate judgment against Robert Purdon, and proceeded by scire facias to obtain execution upon it. To the declaration in this scire facias, Robert Purdon (a) See post, pages 631-634. pleaded the payment of the debt by George Purdon, and averred by the plea that the debt so recovered against George Purdon and the debt recovered against Robert Purdon, were for the sum mentioned in the bond, and not other and different. It was said that under these circumstances the only question was, how the proceeding to obtain a double satisfaction was to be resisted: how the facts, ascertaining that a plaintiff had already had execution and satisfaction for what he was proceeding to recover by another execution, were to be made known to the Court, in which such a proceeding was pursued: whether the facts stated in the plea before the Court were the subject of a plea in bar of execution, or of an audita querela: for it was quite clear that a defendant might avail himself of those facts in the one way or the other: and it was equally clear that if the former mode of defence (a plea in bar) was open to a defendant, and he had an opportunity of making it, he could not have recourse to the latter mode of defence (audita querela). It was said to be conceded, that the question arising upon the above facts was not affected, at least not in favour of George Purdon, by the several assignments of the judgments under the Irish statute, the express provision of that statute being that the conusor of an assigned judgment shall have the same defence against the assignee, which he could have had against the conusee (a), and, consequently, that George Purdon's right, if (a) 9 Geo. 2, c. 5, an Act for the more effectual assigning of judgments, &c. It may be convenient that the recital and other material parts of this act, as far as regards the assigning of judgments, should be here inserted. "Whereas judgments, statutes staple and statutes merchants, are frequently assigned for valuable considerations, and to protect the purchase of estates, but are no more than equitable securities in the hands of the assignees: and whereas assignees of such judgments, statutes staple, or statutes merchants, as the law now stands, cannot revive or discharge the same in their own names, but in the name of the conusees of such judgments, statutes staple, or statutes merchants, or their representatives, which is often attended with very great inconveniences, and the conusee may, after such assignment, enter satisfaction on the record of the said judgments, statutes staple, or statutes merchant, without the knowledge or consent of the assignee; for remedy whereof, be it enacted, &c., that from and after, &c., where any conusee or conusees of a judgment or any, to revive the judgment against Robert Purdon, and to have execution upon it, could be no other than such (if any) as judgments, statute staple or statute merchant, his or their executors or administrators, shall assign the same to any person or persons whatsoever, such conusee or conusees, his, her or their executors or administrators, shall also perfect a memorial of such assignment under his, her or their hand and seal, upon parchment or vellum, attested by two or more credible witnesses, which memorial shall contain the name or names and addition of the person or persons assigning such judgment or judgments, statute staple, or statute merchant, the name or names of the person or persons to whom the same shall be assigned, and the sum or sums of money mentioned in such assignment or assignments to be remaining due and unsatisfied upon such judgment or judgments, statute staple or statute merchant, with the day and year when such assignment or assignments is, are, or was or were perfected; and that one of the witnesses to such memorial, who shall be a witness to the assignment of such judgment or judgments, statute staple or statute merchant, shall make an affidavit at the foot of such memorial, of the true perfection of such assignment and memorial, before the respective officer or officers where such judgment or judgments, statute staple or statute merchant, is, are, or shall be entered, his or their legal deputy or deputies, or before any one of the judges of the four Courts in Dublin, or before any one of the judges of his Majesty's Courts at Westminster, who are respectively hereby empowered to take such affidavit or affidavits; which memorial and affidavit shall be lodged in the proper office where such judgment or judgments, statute staple or statute merchant, is, are, or shall be entered; and the several officers of the said Courts are hereby required to enter such memorial of such assignment, statute staple or statute merchant, in a roll or rolls of parchment or vellum, to be kept for that purpose in such respective office or offices, where such judgment or judgments, statute staple or statute merchant, is, are, or shall be entered; and such officer or officers is and are hereby required to endorse on such assignment or assignments the day of the month, and year and hour of the day, whereon such memorial or memorials was or were so lodged and proved: and for the more easy and speedy method of finding such assignment or assignments, such respective officer or officers shall enter the number and roll where such assignment or assignments is or are registered, at |