sister state, is bad, under the constitution, and act of Congress of 1790. Armstrong v. Carson's ex'rs, C. C. 2 D. 302. CONTRA, Wright v. Towers, (Com. Pleas, Luzerne,) 1 Br. Appx. i. [And see JUDGMENT.] 23. And nil debet is not a good plea to an action of debt brought in a Circuit Court of the United States, against an executor or administrator, upon a judgment obtained in a Circuit Court of the United States, for another district. Reed v. Ross, 1 Bald. 36.

24. In debt on simple contract, the wager of law has been allowed in Pennsylvania. Barnet v. Ihrie, 17 S. & R. 212. GIBSON, C. J.

25. In an action of debt upon a judgment obtained in the Superior Court of Ohio, where it appeared that the same court had afterwards granted an injunction against proceeding upon the judgment, provided security be entered by a certain day, it was held that the plaintiff was not entitled to recover, although the security was not entered in Ohio until after the commencement of the suit here. Palmer v. Palmer, 2 M. 373.

26. In debt upon a judgment under the plea of nul tiel record and payment, evidence is not admissible that an injunction has been granted against proceedings upon the judgment. It must be specially pleaded. Palmer v. Palmer, 2 M. 374.

27. In debt on bond, where the issue is joined on the plea of pay ment, which in Pennsylvania admits of an equitable defence, the jury may and ought to presume every thing to have been paid, which ez æquo et bono in equity and good conscience ought not to be paid. Hol lingsworth v. Ogle, 1 D. 260.

28. On the issue of non solvit to an action of debt, the practice is, to enter the verdict for the sum found to be actually due, without any other determination of the issue. Thompson v. Musser, 1 D. 458, 462.

29. Where, in an action of debt, the verdict does not exceed the sum demanded in the writ, it should be taken in debt for the whole sum; but where the debt and interest exceed that sum, it should be in debt for the amount demanded, and in damages for the residue. Reed v. Pedan, 8 S. & R. 263.

30. A verdict, finding more than the sum demanded as debt, but appearing by calculation to be for the debt and interest, is informal, but may be moulded into form by considering the surplus as damages; and may be thus amended by the superior court on error. Friedly v. Sheetz, 9 S. & R. 156.

31. A verdict for the plaintiff generally in an action of debt, without finding any sum, is bad; and the judgment will be reversed on error. Miller v. Hower, 2 R. 53.

32. A verdict, in an action of debt for a larger sum than that demanded in the writ, is good, if the excess appear to be interest on the principal sum. Graff v. Graybill, 1 W. 428.

33. In a suit for a penalty by the party aggrieved, damages may be recovered for the detention: Secus, if the suit be by a common informer. Ritchie v. Shannon, 2 R. 196.

DEBTOR AND CREDITOR.

A. Of the joint and several liability of debtors.
B. Of the right of appropriation.

C. Of the extinguishment and satisfaction of
debts, and of collateral securities.

D. Of voluntary assignments for the benefit E.
of creditors; (a) when such assignments
will be good; (b) construction of certain F.
assignments; (c) of the creditors entitled
under such assignments; and herein of G.
releases and dividends; (d) of the as-

signees, their duties and liability; and herein of recording the assignment, of giving security, and of the settlement of their accounts, &c.

Of voluntary deeds and bonds given to defraud creditors.

How far a sale of goods will be void as against creditors and others.

Of accounts between debtors and creditors; and other cases.

A. Of the joint and several liability of debtors.

1. A recognisance beginning thus, "C. W. bound, &c. in the sum of, &c., and J. W. and M. B. bound in the like sum, &c. to be levied of their goods and chattels, lands and tenements respectively," &c., was held to be joint and several. Wampler v. Shissler, 1 W. &. S. 365.

2. Where an instrument began, "I do hereby certify that I will go security for J. P." &c., and concluded, "in witness whereof we have hereunto set our hands the day and year above written," signed J. P. and A. K., it was held that it ought to be taken as the several engagement of each or the joint engagement of both, and therefore that A. K. was liable in a separate action. Knisely v. Shenberger, 7 W. 193.

3. Where a note was signed by two persons, and on the margin adjoining the name of the last signer were these words, "Security for the fulfilment of the above;" it was held that these words did not convert his joint direct liability into that of a guarantor. Craddock v. Armer, 10 W. 258.

4. The defendants signed a call to a minister of the Presbyterian church, in which they promised to provide for his maintenance "in the manner set forth in the subscription papers accompanying the call." By the subscription papers, they promised "to pay to him, or his order, the sums annexed to their names, yearly, and every year, &c. with liberty to any subscriber to withdraw at the end of the year." Held, that they were not bound jointly for the whole subscription, but each for himself, to the amount of his own subscription. Riddle & al. v. Stevens, 2 S. & R. 537.

5. Where an instrument in the form of a promissory note for the payment of a certain sum of money to A. or bearer, is signed by three persons, and a seal affixed at the signature of one of them, a joint action cannot be maintained against the three; and if the seal be affixed afterwards, and in the absence of the other two, the instrument is rendered void as to the latter. Biery v. Haines, 5 Wh. 563.

6. If two enter into a joint bond, and one die before judgment, the survivor shall be charged alone. Reed v. Garvin, 7 S. & Ř. 363. DUNCAN, J. 7. But if after judgment obtained against two joint debtors, one die, the plaintiff may either proceed against the survivor personally and alone, or he may proceed upon the real lien against the survivor and the heir or administrator of the deceased debtor, in which case the scire facias must be against both. Ibid. & 365; S. P. Com. v. Miller, 8 S.

& R. 452.

8. For the form of a writ of scire facias quare executio non, against the executors of a deceased defendant, on a judgment in debt against two, the survivor being insolvent, from the records of the Supreme Court of Pennsylvania, see Dutilh v. Mason, 1 Hall's Journ. Jur. 248.

9. According to our practice, it seems, the executor or administrator is substituted for the heir, and the terre-tenant is not made a party on the record formally, but permitted to come in on notice and defend pro interesse suo. Com. v. Miller, 8 S. & R. 457.

10. But as respects the goods, execution can only go against the survivors; the goods of those who have died being discharged. Ibid.

11. Where an award of arbitrators has been had against two joint debtors, and pending an appeal one dies, a scire facias may be issued by the plaintiff against his executors to compel them to become parties, and to subject the lands of the testator to the payment of the debt. Reed v. Garvin, 7 S. & R. 354.

12. And, it seems, that where the surviving obligor was insolvent, and the debt was the proper debt of the deceased obligor, the personal estate may be reached. Ibid.

B. Of the right of appropriation.

13. Where a debtor, indebted on several accounts, makes a payment, he may apply it to either account; if he does not, the creditor may do so; if neither does, the law will appropriate it according to the justice of the case, provided there are no other parties interested. Postmaster General v. Norvell, G. 106.

14. A debtor cannot appropriate a payment, in such manner, as to affect the relative liability or rights of his different sureties, without their assent. Ibid.

15. Although as between the immediate parties the creditor has a right to appropriate where the debtor has failed to do so, yet this right must be exercised within a reasonable time after the payment, and by the performance of some act which indicates an intention to appropriate. Harker v. Conrad, 12 S. & R. 305.

16. And where there is a third person whose interests will be affected by the result of a particular appropriation by the creditor, it will not be permitted. Ibid.

17. If a debtor give to a creditor a draft for money, and direct the application of the proceeds to a particular liability, the creditor is bound to apply it to that liability as much as if the debtor had paid the same amount in cash with the same direction. Moorehead v. West Branch Bank, 3 W. & S. 550.

18. Whether the debtor, in making a payment to his creditor, intended to apply it to one debt or another, is a matter of fact which must be ascertained by the jury from all the circumstances of the case and conduct of the parties. Ibid.

19. A having a claim upon B for one hundred and twenty-five dollars, for services performed, gave C a draft upon him at sight for fifty dollars, which B refused to pay, but afterwards gave a check for fifty dollars, saying, that "it was in full of the draft," but A refused to apply it as such. Held, that A had a right to credit the check to his general claim, and was not bound to appropriate it to payment of the

draft, which being dishonoured, might be considered as a nullity by A and C. Ingraham v. Hall, 11 S. & R. 78.

20. Where A negotiated a loan in Amsterdam, for and on account of the King of Spain, for the repayment of which the revenues of Spain were pledged; and afterwards, duties, which were payable to the King of Spain on the export of merchandize to the Spanish possessions in America, came legally to the hands of A, and were by him applied to the liquidation of the loan; it was held, that these duties being a part of the revenues of Spain, might legally be appropriated to the payment of the loan. King of Spain v. Olivers, 1 P. C. C. 276.

21. Where a plaintiff had two judgments against A, the last of which was upon a note of which A and B were endorsers, and the lien of the first judgment was gone; it was held, that he could not apply the proceeds of the sale of the defendant's land to the satisfaction of the first judgment, so as to leave the second judgment in force to the prejudice of B, who was a subsequent endorser to A. The Westmoreland Bank V. Rainy, 1 W. 26.

22. I am inclined to think that the plaintiff could not make such an appropriation without the consent of the defendant, even if no other person were interested. Ibid. KENNEDY, J.

23. Where part of an account, filed as a claim, was for materials furnished to the contractor before the making of the contract, and there was a credit of cash for lumber first got, it was held not to be error to refer it to the jury to determine whether the payment was to be appropriated to the lumber first furnished, or to that for which the plaintiff had a lien. Dickinson College v. Church, 1 W. & S. 462.

24. Where a bond is given, payable by instalments at different times, and the debtor pays money on the bond generally, the law will apply the money towards the payment of the instalments that had become payable at the time of such payment, according to the priority of dates, and not to the instalments that were not payable at the time. Seymour V. Sexton, 10 W. 255.

25. Where the parties agree that the price of materials shall be paid for in labour, and a settlement has been made between them on this basis, the creditor cannot change this appropriation without the consent of the debtor, so as to obtain the benefit of a lien for the materials, and apply the credit for the labour to a demand, for which he cannot have a lien. Martin v. Draher, 5 W. 544.

C. Of the extinguishment and satisfaction of debts; and of collateral securities.

26. It is well established, that the receipt of one thing in satisfaction of another, is a good payment; as, the acceptance of a horse in lieu of a sum of money; or, of a bond by a third person, in discharge of a prior obligation. Musgrove v. Gibbs, 1 D. 217. M'KEAN, C. J.

27. But an agreement, without any consideration, to receive a less sum from the debtor, does not extinguish, nor is it a satisfaction of the original debt. Latapee v. Pecholier, 2 W. C. C. R. 180.

28. A bond given by one of two or more joint contractors, extinguishes the original simple contract as to all. So, of a judgment obtained against one. Willing & al. v. Consequa, 1 P. C. C. 306.

29. So, where a release is given to one of two joint obligors, the obligation is extinguished at law as to all, and equity will not relieve in such case, although it is apparent that such was not the intention of the obligee. Id. 307.

30. But, a specialty received as collateral security, for a simple contract debt, does not extinguish the simple contract, and may, therefore, be read in evidence in an action of assumpsit, to ascertain the amount originally due. Charles v. Scott, 1 S. & R. 294.

31. A higher security for a debt given by different parties or for a different sum, will, in the absence of proof of the intention of the parties, be presumed to have been accepted as a collateral security, and not in satisfaction of the debt. Jones v. Johnson, 3 W. & S. 276.

32. A merger takes place only where the debt is one, and the parties to the securities are identical, which works a dissolution, not of the debt, but of the original security. Extinguishment or satisfaction of the debt, depends upon the agreement and intention of the parties, which is rightly referred to the jury as a question of fact. Ibid.

33. Where the obligee, in a bond, had received from the principal obligor, certain bills of exchange, which were to be credited, in part payment, when paid, but which had been protested for non-payment, and the obligee had charged the principal with the twenty per cent. damages in account, and had retained the bills without offering to return them, it was held that he had elected to consider them as a payment, and that the surety was discharged pro tanto. Watts v. Willing, 2 D.

100.

34. So, where the bankrupt act of Pennsylvania provided that the debt upon which a commission issued, should have arisen upon a contract "subsequent to the act," it was ruled, that a bond taken subsequently to the act, upon a contract which arose before, warranted the issuing of the commission. Pleasants v. Meng & al., 1 D. 388.

35. A bond, assigned to the plaintiff, to be applied to the discharge of the debt for which the suit is brought, is not payment, although it is not returned to the assignor, it being proved that the consideration had failed, and that the assignor had acknowledged it to be of no value. Wilson v. Hurst's ex3rs, 1 P. C. C. 441.

36. The acceptance of a bond from the third person, for the faithful payment of moneys due by the defendant to the plaintiff, does not impair or extinguish the original cause of action. Axers v. Mussleman, 2 Br.

115.

37. A mortgaged land to B, and after his death his executors sold part of the mortgaged premises to C, who assumed the payment of the prin cipal and interest, and gave his bond to B for the interest due. No receipt for the bond was entered on the mortgage, and it did not appear that it was accepted by B as a satisfaction. Held, that the bond was not a payment pro tanto of the interest due, so as to discharge the executors of A. Hamilton v. Callender's ex'rs, 1 D. 420.

38. The general rule seems to be, that if one indebted to another, by simple contract, give his creditor a promissory note, drawn by himself, for the same sum, without any new consideration, the new note shall not be deemed a satisfaction of the original debt, unless so intended and accepted by the creditor. Hart v. Boller, 15 S. & R. 162. Roberts v.