Taggard vs. Curtenius & Jones, 15 Wend. 155

By the Court, Bronson. J. This is not a plea that the plaintiff has taken a higher security than he had before, and so extinguished the debt. Bacon’s Abr. tit. Extinguishment, (D). Nor is it a plea that he has accepted a collateral thing in satisfaction of the demand, Anderson v. The Highland Turnpike, 16 Johns. R. 86; but it is a plea that the plaintiff has received certain bridge and bank stock and bank bills, “ as collateral security” for the payment of the notes. This is no answer to the action. It did not absolve the defendants from their undertaking to pay the notes when they should fall due.

The acceptance of a mortgage or other collateral security for the payment of a debt, neither satisfies the original demand nor suspends the right of action to enforce it. Day & Penfield v. Leal & Leal, 14 Johns. R. 404. The plea does not allege that there was any agreement to enlarge the time of payment mentioned in the notes, nor that the stock was to be sold before the notes came to maturity, but only that the payees were to use due diligence in disposing of it at the highest price.

Nor is it alleged that the plaintiff might have sold the stock before the notes fell due, or that he is chargeable with any negligence for omitting to do so. But the complaint is, that the plaintiff carelessly and improperly neglected to sell the bridge stock for many years, and until after the bridge was carried away by a flood, in July, 1831. When the negligence of the plaintiff commenced is not averred, but only that he ought to have sold before July, 1831. At that time both of the notes had been due more than four years, during all which period the plaintiff might have had his action to recover the debt.

If the plaintiff had a right of action on the notes when they came to maturity, no subsequent neglect or improper act of his, in relation to a collateral matter, could deprive him of that right. This brings us to the real difficulty in sustaining the defence. The defendant Curtenius pleads, in bar of the action on the notes, that the plaintiff has broken another contract which he entered into with the defendants, by which they have sustained damages equal to the debt which'they owe the plaintiff. The mere statement of the case furnishes a sufficient answer to the plea.

It may be true, as was contended on the argument, that the facts stated in the plea would"be sufficient to sustain an action by Jones and Curtenius against Taggard & Co.; but it is no bar to the present suit, that the defendants may have anpther action against the plaintiff, and recover as much damages as will be recovered against them in the present suit. There is no such thing as setting up one right of' action inxbar to another right of action. One demand may in some cases be set off against another, but no attempt was made to sustain this as a plea of set-off.

If the plaintiff has sold any of the property, or received dividends on the stock, the defendants can set off the amount as so much money had and received to their use. Whether -the matters pleaded would entitle the defendants to relief in a court of equity need not be considered ; it is sufficient that they constitute no defence in a court of law. O’Kelly v. Sparkes, 10 East, 369. Donnelley v. Dunn, 2 Bos. & Pul. 43. The second special plea is substantially like the first, with two exceptions.

It avers that when the notes become due and payable, and for a long time afterwards and before the bridge was carried away, the stock was of great value, to wit', of the value of $4500, and might, with due diligence, have been sold for that sum. It also avers that the payees of the notes have carelessly and improperly neglected to notify the defendants that the bridge stock was on hand and unsold, at any time since the month of October, 1828.

The plea does not allege that the stock ought to have been sold at or before the time when the notes came to maturity; it only states that it might then, and for a long time afterwards, have been sold for a good price. The substance of the allegation is, that the stock should have been sold before the bridge was carried away by the flood in 1831. The plea impliedly admits that the defendants had notice that the stock was on hand and unsold in October, 1828, and complains that they have had no notice since that time.

Both of the notes had then been due eighteen months, during all which period the plaintiff had a perfect right of action, so far as appears, to recover the amount, and no subsequent default on his part, in a collateral matter, could bar him of that right. There must be judgment for the plaintiff on the demurrer to the second and third pleas, with leave to the defendants to amend on payment of costs.