
    Minot vers. Prout.
    Suing and entering upon a Mortgage is no Bar to an Action upon the Bond secured thereby.
    Debt upon a Bond. Defendant pleads as follows : “ The said Timothy comes and de- " fends, &c„, and prays Oyer of the Condition there- “ of, and the same is read to him in these Words:
    1762.
    “ The Condition of the aforewritten Obligation, “ &c., (this Condition as usuall,) which being read “ and heard, the said Timothy faith that the said “ Christopher his Action aforefaid against him the “said Timothy ought not to have and maintain, “because he faith that the said Timothy, on the “ Day of the Date of the said Obligation, and col “lateral thereto, at Boston aforesaid, made and exe“cuted to the said Christopher a Deed of Mortgage; “ of a Messuage and Land, situate, &c., which “ Mortgage was executed to the said Christopher “ to be a collateral Security for the Payment of the “ Sum in the Condition aforecited mentioned and “ the Interest thereof, and afterwards, viz., at Bos-“ton aforesaid, on the 13th of December, 1758, he “ the said Christopher by his Deed, sealed with his “ Seal, assigned and conveyed the said Mortgage, “ as well as the Obligation now sued on, to one “ William Brown, of, &c., and the said William “ afterwards, viz., the same Day, made his Election, “and for the Non-payment of the said Sum en“tered on the said mortgaged Premises, and became “ seised thereof in his Demesne as of Fee, and still “ holds the said mortgaged Premises; and all this “ the said Timothy is ready to verify, wherefore he “ prays Judgment if the said Christopher his Action “ aforesaid against him the said Timothy shall have “ and maintain.
    “O. Thacher.”
    
    
      To which the Plaintiff replied: “And the said “ Christopher faith, that for Anything above al-“ledged, he the said Christopher ought not to be “barred from having and maintaining his Action “ aforesaid, because protecting the said William “ Brown never made any Election as he the said “ Timothy above supposeth for Plea, the said Chris-“topher faith that the said William. Brown did not “ enter into or upon the said mortgaged Premises for “ the Non-payment of the said Sum mentioned in the “ Condition aforesaid, and the Interest thereof, as the “ said Timothy in his Plea abovesaid hath alledged, “ and this the said Christopher prayeth may be in“quired of by the Country.
    
      “R. Dana.”
    
    Upon Demurrer, Exception taken to the Replication, that it was a Negative Pregnant. Doct. Placitandi, 256, cited: That either the whole Plea should have been traversed, or he should have set forth the particular Matter. Cro. James, 559.
    
      Contra. They having demurred to our Replication, on that Demurrer we may take Exception to their Plea, which if bad we need not answer their Exception to our Replication. Their Plea is insufficient; for though he had entered upon the Mortgage, yet that is not conclusive that the Bond may not be sued.
    Upon this it was largely debated whether a Mortgage being sued and entered upon, the Bond could have Effect, and e contra.
    
   Ruled unanimously, that it could, and that the Plea is bad. ()

Bond to be chancered next Term. () 
      
      (1) S. P. Amory v. Fairbanks, 3 Mass. 562. Ely v. Ely, 6 Gray, 439. See also 8 Pick. 336; 5 Cush. 231.
     
      
      (2) A bill in chancery was accordingly filed praying that the penalty “ be chancered down to the sum of one penny.” But the Court gave £ 176 105.
      
     