
    [Philadelphia,
    January, 8, 1827.]
    DURLING and Wife against NEIGH, Executor of NEIGH, and others, terre-tenants.
    IN EBROR.
    Agreement with the defendant, an executor, by the plaintiff, a legatee, to waive the legacy, in consideration of five hundred dollars to be paid to the plaintiff by promissory notes drawn by the defendants. The notes were drawn, and the plaintiff signed a paper, acknowledging he bad received them, to be in full, «' when paid,” of all demands against the estate of the testator. Held, not to be a substitution of the personal responsibility of the defendant for that of the'estate.
    Error to the Court of Common Pleas of Northampton county, in an action of debt brought by Andrew Durling and Susannah, his wife, against James Neigh, executor of Andrew Neigh, deceased, and James Neigh, Jeremiah Neigh, and James Henderson, devisees and tenants of the lands of which Andrew Neigh died seised.
    The plaintiff in error, who was also plaintiff below, declared for a legacy bequeathed to his wife by the last will and testament of Andreio Neigh, deceased, and charged upon the lands devised to the terre-tenants. The defendants pleaded payment with leave, &c.
    The plaintiff gave in evidence, on the trial, the last will and testament of Andrew Neigh, deceased, dated 21st of November, 1815, proved 13th of January, 1816.
    
      Caveat against the probate thereof, by Samuel Neigh, dated the 6th of December, 1815, withdrawn the 13th of January, 1816. The defendants having given the notice of special matter, dated the 11th of April, 1825, hereafter mentioned, proved the following receipt, signed by the plaintiffs, “ received, December 7th, 1816, of James Neigh, executor of the estate of Andrew Neigh, deceased, his different notes for five hundred dollars, when paid, in full of all demands against the said estate of Andrew Neigh, deceased.”
    The defendants offered in evidence the record of a suit, Andrew Durling v. James Neigh, in the Court of Common Pleas of Northampton county, oi April Term, 1824, No. 75.
    To the admission of which the plaintiffs objected that it was not pertinent to the issue; that no notice had been given to the plaintiffs to produce the promissory note on which the said action was alleged to be founded; that the said suit or action was still depending, and that no notice thereof was given in the defendants’ notice of special matter. The court overruled the objection, and admitted the record in evidence.
    The following was the notice of special matter:—
    In this action, under the pleas therein entered, the defendants will offer evidence to prove that some time in the jrnar 1815, or 1816, a settlement was made between the plaintiff, Andrew Durling, and James Neigh, one of the defendants; whereby it was agreed, that the said James Neigh should execute notes to the amount of four or five hundred dollars in favour of the said Andrew, payable at different periods, which when done should be in lieu of the devise contained in the last will of Andrew Neigh, deceased, in favour of the plaintiffs, and upon which this suit is founded; which devise amounted to the sum of seventy-five pounds,. That the said notes have been actually executed and delivered to the aforesaid Andrew Durling, and accepted by him in full of the legacy or devise aforesaid, and have been since that time'discharged by the said James Neigh”
    
    The plaintiffs requested the court to charge the jury,—
    1. That if a creditor takes a new security, of an equal dr inferior degree from his debtor, it is not an extinguishment of the original claim.
    
      2. That a note is not an extinguishment of a prior debt, unless it is expressly agreed by the creditor to receive it in payment and discharge of the original claim; nor would a judgment recovered on such note operate as an extinguishment, unless payment has been actually received,on it.
    3. That the legacy bequeathed to the wife of the plaintiff is a lien upon the lands of the testator, in the hands of the devisees and tenants; and, being so, a note or bond taken therefor would be a security'of an inferior degree, and that the acceptance of such bond or note would not be an extinguishment of the legacy.
    4. That as the receipt of the plaintiff to James Neigh for these notes declares, that “whenpaid” they will be in full of all demands against the testator’s estate,, such notes, in law, are only a collateral security for the legacy; and that a note taken as a collateral security, does not work an extinguishment of the preceding debt.
    5. That the acceptance of a bond or note from James Neighiov the payment of money due by him and the other defendants, when they (the other defendants,) were not of the age of twenty-one years, does not impair or affect the right of the plaintiff to pursue the lands charged with the payment of the legacy.
    Answers of the court:—
    1. It is admitted that if a creditor takes a security of an equal or inferior degree from his debtor, it is not of itself an extinguishment of the original claim. But if such security is accepted as a payment dr satisfaction of such original claim, it is a discharge of such claim; and whether such security has been so accepted is a question of fact, of which the jury are to judge, and decide under all the circumstances of the case.
    2. A note is not an extinguishment of a prior debt, unless the creditor agrees to receive it in payment and discharge of the ori« ginal claim. Nor would a judgment recovered on such note operate as an extinguishment of such prior debt, under such circumstances. But, if the creditor accepts such note, retains the same in his possession, and prosecutes an action on it against the debtor, and recover judgment, such acts are proper for the consideration of the jury, and an actual payment of the note is not indispensably necessary. The jury must be satisfied that the parties agreed that such note was accepted in satisfaction and payment of such original claim, otherwise it will not bé a discharge of the original claim.
    3. There is no doubt that the legacy bequeathed to the plaintiff’s wife was originally a lien on the testator’s lands in the possession of his devisees and terre-tenants. But the plaintiff, by accepting the notes of Neigh, might discharge that lien, and if the jury are of opinion that the plaintiff, Andrew Durling, accepted the notes of James Neigh for five hundred dollars, in lieu and satisfaction of the legacy of two hundred dollars, such acceptance would operate, not as an extinguishment, but as an actual discharge of the legacy. Three notes of one hundred dollars each have been paid; Andrew Durling retains - the the other notes. He has not offered to deliver up the last mentioned notes to James Neigh, but has sued out one of them and recovered a judgment upon it. Notwithstanding all these circumstances, the jury must be convinced that the parties intended to'discharge and exonerate the real estate from the legacy.
    4. The expression contained in the receipt of Andrew Durling to James Neigh, “that when paid they will be in full of all demands against the testator’s estate,” do not necessarily imply that the notes mentioned in the said receipt are only a collateral security for the legacy. These expressions would only seem to have referred to the nature of the debt, for payment of which the notes were given. A note given as a collateral security does not work an extinguishment of the preceding debt.
    5. The defendants in this action were, at thq time the notes were given by James Neigh to Andrew Durling, tenants in common of the lands devised by the will of Andrew Neigh, deceased. By Andrew Durling's acceptance of the notes of James Neigh, one of the tenants in common, his claim, secured by the notes became confined to the notes, and the legacy secured to Susannah Durling, his wife, by the will of Andrew Neigh, against all the tenants in common, was discharged, the infancy of the other tenants in common, to the contrary notwithstanding, if such was the agreement of Andrew Durling and James Neigh.
    
    The following were the errors assigned;;—
    1. The court below erred in admitting in evidence the record of the suit Andrew Durling v. James Neigh; because the said record was not pertinent to the issue trying in this suit. No notice was given to the plaintiffs to produce the note on which that suit was founded, the said suit was still depending, and the defendants gave no notice thereof in the notice of special matter given by him to the plaintiffs, as required by the 11th and 12th Rules of the Court of Common Pleas of Northampton county, title “pleading.”
    2. The court erred in their charge to the jury, as to the legal effect of the evidence given in the cause, and submitting to the jury as matter of fact for their consideration that which was properly a matter of law, and upon which the court should and ought, under the points propounded; to have given a legal opinion to the jury.
    3. That the court erred in saying, that the acceptance of the notes as a payment or satisfaction was a discharge of the claim, when it was proved that the said notes were received to be in full only when paid. The court did not fully and correctly answer the first point propounded.
    4. That the court did not charge correctly in answer to the 2d point, in saying that “if the creditor accepts such note, retains the same in his possession, and prosecutes an action on it against the debtor and recovers judgment, such acts are proper for the consideration of the jury, and an actual payment of the note is not indispensably necessary, &e.,” nor has the court fully answered the said point.
    5. The court erred in answering the 3d point, and in saying “ Andrew Durling retained the other notes; he has not offered to deliver up the last mentioned notes to James Neigh, but has sued out one of them, and has recovered judgment upon it.” That being a fact proper for the jury, and not for the court to determine; and the court have not fully answered the said point.
    6. That the court erred in answering the 4th point, and in saying, “ that the receipt of Andrew Durling to James Neigh, that when paid they would be in full of all demands against the testator’s estate, does not necessarily imply that the notes mentioned in the said receipt are only a collateral security for the legacy. These expressions would only seem to have reference to the nature of the debt, for payment of ■which the notes were given.” And the court have not fully answered the said point.
    7. The court have not fully answered the 5th point, and have erred in not laying the point as stated, before the jury as law.
    8. That there was error in recording a verdict and entering judgment for the defendants, on the finding returned by the jury.
    9. That the jury were sworn to try the issue joined between the parties as they stood on the record; whereas James Neigh, one of the terre-tenants, had never appealed from the award of arbitrators made in the case.
    
      Brook, for the plaintiffs in error.
    
      Scott, contra.
   The opinion of the court was delivered by

Gibson, J.

Although nine errors are assigned, there is really but one point in the cause. This practice of putting the same point in a variety of ways leads to a waste of time, and a silly repetition of the same arguments, and imposes an unnecessary burden on the judges of this court, (already tasked beyond the power of performance,) in seeking for two grains of wheat in two bushels of chaff. It is, however, but fair to say, that in this cause the counsel conducted the argument with great propriety; and it is to be understood thát I speak of the practice generally, when I say it c^lls for severe reprehension. It is indefensible on the score even of caution, or a prudent attention to assigning the errors in such a way as to give the party the benefit of every sort of exception; for surely no counsel is so ignorant as to be unable to discern the substantial points of his cause, and if these be against him no turning or twisting, or shifting or management, will make them better. Here the plaintiff in error has one good point, and he should have been content to avail himself of substance without catching at shadows. It seems the validity of the will under which the plaintiff claims, was at one time disputed, but the parties agreed that all objections should be withdrawn, in consideration of five hundred dollars to be secured to the plaintiff by promissory notes drawn by the defendant. The notes were in fact drawn, and the plaintiff signed a paper in which he acknowledged that he had received them to be in full, “ when paid,” of all demands against the estate of the testator; and the court directed the jury that this was a substitution of the personal responsibility of the defendant, even before the notes should be paid, for the responsibility of the estate. In this there was such glaring error as to render further remark unnecessary. The judgment therefore is reversed, and a venire de novo awarded.

Judgment reversed, and a venire facias de novo awarded.  