
    Henry Cary versus John Prentiss.
    A mortgagor, being sued as the trustee of the mortgagee, was committed to prison, as such trustee, from whence he was discharged by taking the poor debtor’s oath; and he was afterwards released by the creditor in the foreign attachment; it was held that the mortgagee was entitled to judgment for pas session, notwithstanding the above facts.
    This was an ejectment, upon a deed of mortgage brought by the mortgagee against the mortgagor, to obtain possession of the mortgaged premises, and the action was submitted to the decision of the Court upon a case agreed.
    [ * 64 ] * The facts in the case were, that on the 28th of September, 1807, Prentiss made his promissory note, not negotiable, to Cary, for 1180 dollars, and gave the mortgage, on which this action is brought, as collateral security for the payment of the note; that, in 1808, one John Henry sued said Cary, and summoned Prentiss as his trustee; in which suit Prentiss appeared and disclosed the giving of said note, and judgment was rendered against Cary, upon his default, for 1323 dollars 83 cents, damage, and costs, and execution also ordered against Cary’s goods, effects, and credits, in the hands of Prentiss; that said execution being returned unsatisfied, Henry sued his scire facias against Prentiss, upon which he again appeared and disclosed the said note and mortgage; and such proceedings were had in the last-mentioned action, that at March term, 1809, Prentiss was adjudged the trustee of Cary, and an execution issued on the said judgment against Prentiss, by force of which he was committed to prison, where he remained until he was liberated by virtue of the statute of 1787, c. 29, made for the relief of poor prisoners in execution for debt; and that, on the 7th of June, 1810, Henry executed a release to Prentiss of the said judgment, as well damages as costs.
    If, upon these facts, the Court should be of opinion that the plaintiff could lawfully maintain this action, the defendant agreed to be defaulted, and that judgment be entered for the plaintiff, as in cases of mortgage; otherwise the plaintiff agreed to become nonsuit.
    
      Blake, for the plaintiff,
    argued, from the statute of 1794, c. 65, § 8, that a trustee, in a foreign attachment, is not .discharged against his principal, but by having surrendered his goods, effects, and credits, to be taken in execution. Here, that had not been done, and the plaintiff’s demand, for which this action was instituted, remains in the same state as before the defendant was summoned as trustee. The plaintiff is still liable to Henry for his whole debt, notwithstanding the proceedings which have been had against the defendant, as the trustee of the plaintiff.
    * Smith, for the defendant,
    argued that his client, having [ * 65 ] been charged in execution for the debt which the mortgage now sued was made to secure, considered himself discharged, as against the plaintiff, from both the note and the mortgage. Should the land demanded be unequal in value to the note, Cary may yet bring his action on the latter, and the defendant be liable to a second commitment in execution for the same cause of action. For if the plaintiff can now recover on the mortgage, no reason can be given why he shall not recover on the note also, if the mortgage is an insufficient security. If Henry’s release has any effect, it should seem to be a discharge, as well against Cary as against Henry. But it is apprehended that the release, being since the commencement of the present action, cannot alter the rights of the parties as they then existed.
   Per Curiam.

The plaintiff is entitled to his judgment. There is no defence at law; and since the release was given, thereis none in equity.

Defendant defaulted.  