
    The Executors of Hatfield against Kennedy.
    
    Upon a joint and several bond, the plaintiff may sue either' of the obligors, at his election, though one of them sign his name us security. That the obligee having a mortgage for the same debt, makes no difference 5 for wherever the plaintiff has different remedies, he may pursue one, or all of them, at the same time 5 tho5 he shall never have double damages. Doug'.. £01.
    DEBT on bond, assigned to Mr» Rivers. A special verdict in this case found, that the bond in question was a joint and several bond from John Hammilton and James Kennedy to the deceased Hatfield, and that Kennedy, the defendant, signed his name as security ; therefore, submitted to the judgment of the court, whether the plaintiffs could go against the security, until the other obligor was proceeded against to insolvency. The special verdict also found, that when this bond was signed, Hammilton gave a mortgage of sundry negroes to secure payment, which had been assigned over to Mr. Rivers, with the bond in question.
    Pinckney, for the defendant,
    contended, that the defendant ought to be considered in this case, only as a collateral undertaker, or bail; in- both which cases, he only became liable upon the failure of the principal. That this must have been the obvious intent and meaning of the defendant when he signed his name as surety, which ought to govern; and that the very import of the term security, conveyed only the idea of a warranty in case of insolvency, agreeable to the civil law. 1 Dom. 374. 377. That at all events, as the mortgage was not foreclosed and the negroes sold, Mr. Kennedy was not liable till that was done, in order that he might know whether there was any, and what deficiency, to make up.
    
      Hall, for the plaintiffs,
    insisted that the addition of the word security., under the defendants name, to the bond, did not alter the binding nature of the bond, which was joint and several. That both were equally principals; and that there was nothing in the bond itself, or the condition, which specified that he was only a collateral undertaker, or warranted only in default of Hammilton, the other obligor, and. that the law would warrant no such construction.
    
      Where a man 219S.M bond and mortgage, he WsJremcdy S Sv'^at^Uie same lyne,
    But admitting, however, that Kennedy was only a cob lateral undertaker, and only liable on default of the other, yet he became liable on the day the money became due ; the moment Hammilton failed to pay, the obligation on his part that instant commenced ; so that even in this point of view, he became liable»
    That even, according to the rules of the civil law, if sureties make themselves principal debtors (which was done in this case) they are liable. And with regard to the foreclosure of the mortgage, Mr. Rivers, the assignee, was not bound to go into equity, as long as he had his common law remedy, although he might have done so, if he had thought proper ; and the more especially, as he had given Kennedy a receipt acknowledging it was only left in pledge, and that he would return it when the money was paid,
    
      
       Tkis ease was omitted among those of 1793.
    
   Resolved,

by the Court,

unanimously, That the defendant, in this case, cannot be considered either in nature of a bail, or as a collateral undertaker, but as one of the principal debtors. From the very face of the bond that was apparent, as there was no clause or proviso in it which evinced such an intention ; the intent ought certainly to govern ; and as the bond is in the common form, joint and several, it is therefore plain shat it was the intention of the parties that both obligors should be equally liable. The addition of the word security, under the name of Kennedy, could not control or alter the absolute nature of the deed; nothing but some memorandum or agreement to that effect, could justify such a construction. Besides, this kind of addition of the word security is often added, in order to shew who is the real debtor, or the person who is to pay the money ; and this is very proper, as in many cases after the death of the parties, it would otherwise be difficult to know whether it was for a joint debt, or not. Vvith re- . , r , . . , gard to the foreclosing the mortgage, that was a matter entirely optional with the mortgagee or assignee; for wherever a man has a bond and mortgage, he may pursue both at the same time, or either of them, as he thinks proper, and this, as Lord Mansfield says, has often been ruled over and over again. Doug. 401.

All the judges present.  