
    
      CROGHAN vs. CONRAD.
    
    East’n District.
    
      May, 1822.
    A note> the which ⅛ secured by a special mortgage, may be sued on, m ordinary
    Appeal from the court of the first district.
   MartiN, J.

delivered the opinion of the court. The defendant, being sued on a promissory note, pleaded the general issue, and that the 7 A o plaintiff cannot maintain his present action, r r

The district court gave judgment for the defendant; the evidence shewing that she had given a special mortgage to secure the payment of the note. The plaintiff appealed.

The appellee relies on Pothier des Hypotheques, n. 155, where it is said that the creditor who has a notarial act, an executory title, mi litre executoire, must resort to it, and cannot sue in the ordinary way, par la vote de la demande.

This writer cites no authority, and Bernadi, in his edition of Pothier’s works, observes that this opinion appears to him a hazardous one.

In the present case, the defendant made a promissory note; the circumstance of her securing payment by a special mortgage, strengthens, does not weaken, the note ; nor does it render it an authentic title.

In giving afterwards a mortgage, she entered into an accessary contract — one which fortifies, but does not mar the principal.

Proceedings by the via executoria are considered by Febrero, and the author of the Curia Philipica, as introduced for the benefit of the creditor — they consider the via executivet, and via ordinaria, as different, but not contrary means, given by law to the creditor, and they both think that even after resorting to the one, he may pursue the other, and afterwards return to the former.

Si el acreedor intenta primero la via execution ; y luego pasa á la ordinaria,podrá dexar estay con-tinuar aquella, pagando al deudor las costas causa-das hasta alli en la ordinaria: la razón es, porque aunque estas dos tñas son diversas, no son contra-rias. A mas de que la cxecucion esta introducida en su favor. 3 Febrero, 2, sec. 2, n. 115, Curia Philipica, executoria, n. 1, sec. 2.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed; and this court proceeding to give such a judgment as in their opinion ought to have been given in the court a quo, it is ordered, adjudged and decreed, that the plaintiff recover from the defendant, the sum of twelve hundred and twenty-five dollars, with interest (as is expressed in the note) at the rate of ten per cent. from the 5th of May, 1821, till paid, with costs in both courts.

Hennen for the plaintiff, Denis for the defendant.  