
    Charles against Scott.
    In Error.
    THIS was a writ of error to the District Court of the city and county of Philadelphia.
    
    
      Richard Scott, the plaintiff below,
    brought an action of assumpsit, against William Charles the defendant, for work and labour done, money paid, goods sold, &c.; and at the trial offered the deposition of Joseph Osborn, to prove that the defendant, then in jail in New Tork at the suit of the plaintiff, had acknowledged himself to be indebted to him in the sum of 600 dollars, and had entered into a written agreement in-relation thereto under seal, to which Osborn was a subscribing witness. The counsel for the defendant objected to this deposition, but the court permitted it to be read. The plaintiff then offered in evidence the agreement, which was substantially as follows: — After reciting that Charles was indebted to Scott in the sum of 6Q0 dollars, it was agreed that Charles “for securing to the said Scott, the said sum of “ 600 dollars,” should deposit in the hands of Osborn 35 copperplate engravings, which should be re-delivered to the said Charles in case he paid the debt in two years; or if he paid a part of the debt, a number of the engravings, proportioned to the sum paid, was to be re-delivered. It was further agreed that if the debt were not paid in two years, Scott should be entitled to receive the engravings for his own use and benefit. No part of the money was paid within the time, in consequence of which, at the expiration of two years, Scott exposed the engravings to sale at public auction in New York; having previously given Charles notice of his intention to do so, and of the time and place of sale. The proceeds of sale were less than 600 dollars, and this suit was brought to recover the difference between that sum and what the plates sold for. The defendant’s counsel also objected to this agreement being read in evidence, but the court admitted it, “ so far as “ to ascertain the amount of the original cause of action.” A bill of exceptions was tendered and sealed as to both points.
    
      An agreement! under seal accepted as a collateral security) is not a merger of a simple contract debt; and may be read in evidence,to show the amount originally due.
    The deposition of a subscribing witness may be read to prove the execution of such an agreement.
    
      
      Leake and Atherton, for the plaintiff in error,
    contended, that the deposition of Osborn ought not to have been admitted, because it went to prove the execution of a sealed instrument, in which the simple contract debt was merged, and which was not the foundation of the present suit: That the agreement was inadmissible, because a specialty cannot be introduced to support an action of assumpsit. That the plaintiff in error, by accepting an instrument under seal, had rendered the simple contract void, and ought to have brought his action upon the agreement itself. In support of these positions they cited, January v. Goodman,
      
       1 Chitty on Pleadings, 86. 88. 95. 299. Cusson v. Monteir,
      Bulstrode v. Gilbert.
      
    
    
      Loxvber and N. Chauncey, for the defendant in error,
    answered that the property mentioned in the agreement was intended and accepted, not in satisfaction, but merely as a 
      pledge or collateral security; the simple contract was thercfore not merged; and that as the instrument was offered at trial, not as constituting the ground of the action, but simply to ascertain the amount of the debt, it was clearly admissible. Thomas v. Terry,
      
       South Sea Company v. Dunscomb,
       1 Gould’s Esp. part 1. 189, 190. D’Utricht v. Melchior,
      
       Beach v. Lea,
      
       Howel v. Price,
      
       Co. Litt. 209. b. Fermor v. Moses,
      
       1 Bay. 66. 1 Chitty on Pleadings, 97. 2 Comyn on Cont. 561, 2, 3. 1 Powel on Cont. 217. 423. 425. Brook, pl. 68.
    
      
      
         1 Dall. 208.
    
    
      
       2 Johns. Rep. 308.
    
    
      
      
         2 Str. 1027.
      
    
    
      
       1 Eq. Ab. 139.
    
    
      
      
         2 Str. 919.
    
    
      
       1 Dall. 428.
    
    
      
       2 Dall. 257.
      
    
    
      
      
         1 P. Wms. 294, note.
      
    
    
      
      
         2 W. Bl. Rep. 1269.
    
   Tilgiiman C. J.

after stating the facts, delivered the following opinion: — The deposition was undoubtedly evidence for the purpose of proving the defendant’s confession of a debt of 600 dollars, previous to the making of the agreement, and if the agreement itself was evidence for any purpose, • that part of the deposition must have been evidence, which proved the execution of the agreement. The objection to the agreement was, that it was a'specialty, received by the plaintiff in satisfaction of the original cause of action, and if that were the case, it could not be evidence to support an action of assumpsit, because the simple contract would have •been merged in the specialty.' The case turns upon this point, and although the writing is not expressed in such terms as to remove all uncertainty', yet upon the whole I consider it as a collateral security, and not a satisfaction of the original debt. It is declared to be given for securing to the plaintiff, the debt of 600 dollars, and it is no-where said, that the engravings are to be taken in any event in satisfaction of the debt. The justice of the case would require, that the plaintiff should receive the amount of his debt, and no more in money, unless the contrary was the agreement of the parties, and the court in a doubtful case, should construe the writing so as to produce justice. If the agreement was only a collateral security, no action for the recovery of the debt could be supported on it, and consequently, it would be no bar to an action on the original assumption. But it was proper to give it in evidence, to show for how much the plates were pledged, otherwise the balance could not be ascertained. I think too, that not containing in itself a cause of action, it "was evidence to show the confession of the defendant, that he was indebted to the plaintiff in the sum of 600 dollars.

I am therefore of opinion, that both the deposition and the agreement were properly admitted in evidence, and that the judgment of the District Court should be affirmed.

Ye ates J.

The rule is settled, that where a sealed instrument has been accepted in satisfaction of a simple contract debt, it is merged by such higher security, and assumpsit cannot afterwards be maintained on it: But collateral security of a higher nature given by either principal or security, will not preclude the" bringing, of assumpsit on the original contract. This reduces the question before us to a single point, whether the copperplate engravings mentioned in the agreement of 14th May, 1808, were deposited in the hands of Joseph Osborn, in payment and satisfaction of the acknowledged debt of 600 dollars', or merely as a collateral security. The expressions of the instrument are, that for securing the sum due, the said William Charles had deposited, &c. Taking therefore the words of the parties themselves, the engravings were deposited as a collateral security for the sum acknowledged to be due, and the original debt was not extinguished by the agreement; the agreement therefore might well be read, so far as to ascertain the amount pf the debt.

I am of opinion, that the judgment of the district Court be affirmed.

Brackenridge J. concurred.

Judgment affirmed.  