Gratz against The Farmers' Bank, 5 Watts 99

The opinion of the Court was delivered by Gibson, C. J. It is sufficient for the occasion to determine the plaintiffs’ right on general principles, without regard to the declaration, or variance in the proof.

Ly advancing the amount of the debt, they acquired a right to be substituted for the bank with the benefit of its securities; and the extent of its responsibility to them may be measured by the extent of its former recourse on the judgment against Slaymaker, and the extent of its recourse to the property of White, qualified as it was by the equity which the plaintiffs themselves derived from their mortgage. ' It appears from the testimony of the cashier, in reference to a statement furnished to the plaintiffs’ attorney, that White was the principal debtor and Slay-maker but a surety; aud that the bank consequently had but a contingent right of recourse to the latter.

But it indisputably appears that White’s estate was more than sufficient for the debt, as the plaintiffs received from the proceeds of the part mortgaged, a sum equal to what they had advanced, beside a considerable surplus applicable to their mortgage. The advancement of the debt by the plaintiffs, therefore, was final satisfaction of the judgment against Slaymaker, to whom neither the plaintiffs nor the bank could recur while satisfaction might be had of the principal; consequently the formal acknowledgement of satisfaction could prejudice no one.

In fact, the representatives of Slaymaker were entitled to demand it; and the bank would have exposed itself to a statutory penalty had it disregarded the request which, it appears, they actually made. In this particular, therefore, the plaintiffs have no room for complaint. What then would have been the value to them of an actual assignment of the judgment against White? They might, perhaps, have applied it in ease of their mortgage to other property, and have thus given their specific lien a preference.

It appears that White had, in fact, other re^l estate; but whether the judgment could have been thrown upon it, though prima facie it would seem that it might, does not conclusively appear; nor is it necessary to inquire, for it is altogether certajn that it was as available in their hands without actual assignment as with it. They might, with the same ease, have had execution of it and directed its application; and had the bank attempted to interfere, the court would have been bound to restrain it. This principle was determined in Fleming v.

Beaver, on full consideration; it is indeed an indispensable means of enabling us to exercise a very valuable branch of equity jurisdiction. If, then, the plaintiffs have suffered from an injudicious application of their securities, the bank' is not answerable for it. Even as the matter stands, they are exactly in the condition in which they would have been, had they not paid the debt to procure the ownership of the judgment. Judgment affirmed.