
    Isaac Clason, impleaded with George Stanly, Appellant, against Robert Morris, jun. and John Mowatt, jun. assignees of Comfort Sands, a Bankrupt, Respondents.
    
    ALBANY,
    March, 1812.
    Where a bill in chancery is filed against two defend-_ ants, jointly interested, and the hill is taken proconfesso3 against one of them, for want of appearance, and the other appears, and disproves the plaintiff’s case, the bill will be dismissed as to both de« fendants.
    C. and D. endorsed the note of S. as security to L. who sued S. on the note, and recovered judgment against him, and afterwards sued C & I), as endorsers* and recovered judgment against them. C. & I). paid to L the amount of the debt, and took an assignment of the judgment against S. It was held that C. St IX stood in the place of L. and might avail themselves of the judgment* to recover the money paid by them of S.
    A surety who pays a debt for his principal, is entitled to be put in the place of the creditor, and to all the means which the creditor possessed, to enforce payment against the principal debtor»
    An answer to a bill of discovery is evidence for the defendant, unless disproved t And unless contradicted by more than one witness, it must prevail against the dictations in the complainant’s hill. Where there is a general denial in the defendant’s answer, which is clear and distinct, any ambiguity, or apparent evasion in a particular part, will not v>tiate r*r destroy other parts» The whole answer is to be taken together, and if any particular part ig ambiguous, it ought to bes so construed as to comport with the general denial.
    THE respondents filed their bill m chancery, stating that a com» . . 4 . . - , . mission or bankruptcy was awarded against Comfort bands, the _ * "S2d June, 1301, and that having been duly declared a bankrupt, Isaac Kibbe was chosen his assignee, to whom the estate and effects of the bankrupt were assigned the 18th July, 1801. On the 6th October, 1806, the creditors removed Kibbe and chose Alexander Macomb an assignee in his stead, to whom the estate and effects of the bankrupt were duly assigned the 23d October, 1806, and that on the 3d February, 1808, the creditors removed Macomb and chose the complainants assignees in his stead, and that the estate and effects of the bankrupt were duly assigned to them the 16th April, 1808. On the 12th November, 1801, George C'odmise, jun. and others, creditors of C. Sands, filed a bill against C. Sands and others, to be relieved against certain fraudulent conveyances made by C. Sands to H. Sands and others, which conveyances, on appeal to this court, were adjudged fraudulent and void, and the estates mentioned in them, situate in New-York and Brooklyn, declared to have belonged to C. Sands at the time of his bankruptcy, and to have passed to, and become vested in, the assignees of his estate and effects, by means whereof the said real estates had become vested in the respondents. That Nicholas Low recovered a judgment in the supreme court, about the 14th August, 1798, against Comfort Sands, for 5,812 dollars and 61 cents, on a promissory note made by Sands and endorsed by Clason, the appellant, and George Stanly; and Low also obtained a judgment on the 14th August, 1798, against Clason and Stanly, as endorsers, for 5,814 dollars and 17 cents ; and that the judgment against Clason and Stanly was paid and satisfied, and satisfaction entered of record, on the 21st January, 1799, and the respondents stated that by the satisfaction of the judgment by the said Clason and Stanly, the judgment also against Sands became satisfied and extinguished, both judgments being for the same demand.
    That Clason and Stanly recovered judgment in the supreme court against C. Sands, the 25th January, 1799, for 5,874 dollars and 6 cents, in assumpsit, on several promissory notes, and the usual money counts. That before these judgments were obtained, Sands had stopped payment, which was known to Clason and Stanly.
    
    That about the time Sands became a bankrupt, an agreement was entered into between him and Clason and Stanly, that he, Sands, should pay to Clason, who acted also for Stanly, the money he owed to Clason and Stanly, admitted by Sands to amount to 13,600 dollars, in the manner following: one half of that sum in lands in the city of Washington, (the title of which was in Lewis Sands,) and the other half out of a debt due from the French government to Sands, and which stood in the name of Joseph Sands; and that in consequence of this agreement, Clason did not prove his debt under the commission of bankruptcy, nor did he appear as a creditor. That the judgment obtained by Clason and Stanly against Sands was part of the debt so agreed to be paid by Sands.
    
    That in part performance of that agreement, Lewis Sands, at the request of Comfort Sands, on the 13th November, 1801, conveyed to Isaac Clason, in fee, for the consideration, as expressed in the deed, of 6,833 dollars and 34 cents, thirty-three lots of ground in the city of Washington, and which lots Clason now holds, or has conveyed. And the respondents also charged, that an assignment or transfer of part of the said debt due from the French government was also made to Clason, in satisfaction of the residue of his demand against Sands.
    
    That Clason had since issued an execution on the said judgment to the sheriff of Kings county, with directions to levy the amount, out of the lands of C. Sands, at Brooklyn, and which now belong to, and are possessed by, the respondents, as assignees, &c. which the respondents charged to b,e a fraudulent attempt to levy the amount of the said judgment, inasmuch as Clason, acting for himself and Stanly, had obtained the conveyance of the lots in Washington, in satisfaction of the judgment, being part of their demand against Sands.
    That Ciasen and Sta,nly, or one of them, had also caused an execution to be issued on the judgment obtained by Low, against Sands, to the sheriff of Kings county, to levy the amount of such judgment out of the said lands at Brooklyn, which, the respondents allege,-has been done without the knowledge of Low, and when nothing was due on the said judgment, and was there,fore a fraudulent attempt, on the part of Clason and Stanly, to obtain the money out of the bankrupt’s estate. That Clason and Stanly, or Clason, acting for both, received from Sands, or gome other person, 4,000 dollars, or some large sum of money, besides the Washington lots, in full of all demands Clason and Stanly had against Sands, at the time of his bankruptcy. That the respondents proposed to Clason to give up what he had obtained from the estate and effects of the bankrupt, and prover his debt under the commission, which he refused to do. The bill prayed a discovery of what was due to Clason and Stanly, or Clason, from Sands, on what account, and how secured; what effects or property of Sands had come into the hands of Clason, in satisfaction of the said demand, and under what agreement or understanding it was conveyed or received; that satisfaction might be entered up on the above-mentioned judgment, and an injunction issue to restrain Clason and Stanly from proceeding by execution on the judgment, until the further order, &c. and for relief generally.
    
      Stanly residing out of the state, the bill, as against him, was taken pro cortfesso, for want of appearance, after a regular advertisement, to come in and answer.
    The answer of Clason, put in on oath, admitted the bankruptcy of Comfort Sands, and the commission and proceedings thereon, and the several assignments, as stated in the bill; it also admitted the suit by George Codwise, jun. and others against Sands, the proceedings thereon, the decree of this court on the appeal, &c, the judgment by Nicholas Low against Sands, and also against Clason and Stanly, as endorsers; and$e that satisfaction had been entered up on the last judgment as stated in the bill.” The answer stated that the note on which the judgments were obtained was gratuitously endorsed by Clason and Stanly, for the accommodation of Sands, who failed to pay it; and that Clason and Stanly,, on the 1st December, 1798, paid the amount of principal, interest, and costs of the judgment obtained against them, to Low, amounting to 5,866 dollars and 45 cents, and, that he by deed assigned, the judgment against Sands to Clason, with full power to levy the amount thereof by execution; and which judgment the appellant insisted was in full force. The answer also admitted that Clason and Stanly recovered a judgment against Sands, as stated in the bill, but denied that the money paid to Loro was any part of the sum for which it was recovered. He admitted that Sands had stopped payment before, the judgments were obtained, and that the fact was known to Clason and Stanly. It stated, that, in October, 1797, Clason and Stanly, solely for the accommodation of Sands, and without any consideration, endorsed three several promissory notes of Sands, amounting to 8,700 dollars, which were presented for payment, and afterwards taken up and paid by Clason and Stanly. That on one of the notes, being 3,200 dollars, Clason and Stanly attached the property of Samd.& 
      in Georgetown ; and that the judgment against Sands, in the sa« preme court, was on the other two notes.; and that the amount o£’ the two judgments, and of the 3,200 dollars,, was due to Clason and Stanly, at the time Sands. became a bankrupt, and is now justly due to the appellant, and that he has not received, nor any other person for his use, from Comfort Sands, or front any person. on his. behalf, any lands, goods, moneys, debts, or any other- thing, in payment or discharge of the said judgments, and the said 3,200 dollars, or any part thereof, the whole of which still, remained due to him.
    That some time previous, to the bankruptcy of Sands, and. while he was in prison for debt, a verbal agreement was made between him and the appellant, by which the appellant was to.be paid, what was due to him with interest, one half out of a debt due to. Sands from the French government,, and the other half in lots in the city of Washington, at their cost; the time of this agreement the appellant did not recollect, but it was before he. had, any knowledge of Sands having committed an act of bankruptcy. The amount of the debt was not then, fixed, but Sands. never disputed the amount of the said judgments, and the note for 3,200 dollars; that the lots in Washington were stated to be held in the name of one of the sons of Sands, and the French debt to be irt the name of Joseph Sands,another son;- and that in consequence qf this agreement, the appellant did not prove his debt under the commission, or appear as a creditor in the subsequent proceedings, i/nder it. That the. judgment of Clason and Stanly against Sands made part of the debt which was to be so paid by that agreement. That in November, 1801, Sands gave or sent to the, appellant, a deed, from Lewis Sands, dated the 13th November,. 1801, for 33 lots, in the city of Washington, the consideration, for which expressed in. the deed was. 6,833 dollars, and 34 cents, which deed the appellant supposed to. be in part performance of the agreement above mentioned. That the appellant did not, at that time, examine.the deed, or accept, or agr.ee to accept the same in. any.manner., or. for any purpose, other than the said, agreement, nor did he give any receipt for the deed, or for any part of his, debt on that or any other account. . That the appellant never received any money from. the. French debt, nor any- assignment of the same, or any part of. it, from Comfort. Sands or any other person ; and he believed that.it had been, otherwise, appropriated, so. that he could obtain, no benefit, from it. That the agreement to pay. lihe .said.debt had not been complied with by Confort Sands, in. 
      any part, and that the debt is still due. That the appellant has not sold, nor exercised any act of ownership over the lots in the city of Washington, as he did not, nor never has intended to considev them as payment of his debt, or any part of it, unless upon the fulfilment of the said agreement. The answer positively denied, in the most explicit manner, that the appellant had ever received 4,000 dollars, or any other sum, at any time from Comfort Sands, or any other person, which, with the addition of the Washington lots, was to be taken in Satisfaction and discharge of all sums and demands against Sands, or for any other purpose whatever.
    It is stated that the partnership between Clason and Stanly was dissolved in 1802, and, by their agreement all the partnership property and effects were vested in the appellant solely, and Stanly was not to meddle therewith, and the appellant believed he had not received any of the partnership debts or effects. The appellant admitted that he declined the offer of the respondents to relinquish Ms liens and take a dividend of the bankrupt’s estate, preferring to pursue his legal remedies on the said judgments; and offered to convey to the respondents the lots in Washington City, on their paying him 8,287 dollars and 34 cénts, being the amount of his demands against Sands, not included in the two judgments.
    The respondents filed a replication to the answer of the appellant, and several witn esses were examined, and proofs taken on both sides; but the material part of the proofs being stated in the opinion of the court, it is unnecessary to detail them here.
    The cause having been heard, the chancellor, on the 19th October, 1811, pronounced his decree, that the judgment obtained by Nicholas Low against Confort Sands, and assigned to Clason of the 14th of August, 1798, and the other judgment obtained by Clason and Stanly against Sands, the 25 th of January, 1799s Were to be demeed fully paid and satisfied, and that they ought not to remain, or be considered as. a Ikm on the estate of the bankrupt; and he, therefore, ordered and decreed that Clason and Stanly, or Clason, should forthwith, after being served with a copy of the decree, acknowledge and enter, or cause to be acknowledged and entered, of record, satisfactions of the said judgments respectively, and that the said Clason and Stanly pay the éosts of the suit. From this decree Clason entered his appeal to this eourh
    
      Thei’easons of this decree were thus delivered by
    The Chancellor.
    From the pleadings and proofs in this cause, it appeared that the appellant, Clason, and Stanly claimed the satisfaction of two judgment debts, and one on simple contract, out of the bankrupt’s estate. The right to one of the judgments, they deduced from its assignment by Nicholas Low ; the other from their own recovery against the bankrupt, Comfort Sands.
    
    The existence of these judgments was proved, and there was no controversy between the parties as to their former existence; but the appellant insisted that they were satisfied, to all equitable purposes.
    As far as respected the judgment of Low, the respondents insisted,
    1. That the payment by Clason and Stanly of the same debt recovered against them, operated as a satisfaction of the judgment '* against Comfort Sands.
    
    
      2. As to the judgment of Clason and Stanly against Comfort Sands, that the transactions of Sands, before his bankruptcy, put his real estate out of the reach of the judgments against him, and its having been regained by the creditors, who prosecuted at great hazard and expense, equity will not allow the respondents more than an equal share.
    
      3. That the appellant, Clason, having accepted 4,000 dollars in -satisfaction of the debts due from Comfort Sands to him and- Stanly, he could not resort to the respondents, for the same purpose, upon discovering that his interest would be better promoted by having recourse to them, in consequence of the bill for avoiding the fraudulent conveyances of the bankrupt having been sustained.
    The solution of those points resolved itself, as far as respected the decision of this cause, into the last; for if that could be sustained, whatever might be the opinion of the court on the others, the result would be similar, and destroy the appellant’s right of satisfaction; but the situation in which these transactions were presented, rendered it, perhaps, fit that the other points should receive attention, as if the facts which they were calculated to bring into view, had a direct tendency to satisfy part of the appellant’s demands, it might conduce to the establishment of the last point, by showing that the 4,000 dollars alleged to have been deceived in full satisfaction, were not so incommensurate to the debts remaining unsatisfied, as they would appear to be, without those r, J rr auxiliary considerations.
    1. The facts respecting Low’s judgment are disclosed in the appellant, Clason’s, answer; he alleges that he and Stanly endorsed the note on which that judgment was rendered, gratuitously; that on the 1st day of December, 1798, the house of Isaac Clason <§° Co. paid the judgment, took a receipt of the attorney for the plaintiff therefor, and that thereupon Low assigned to him (the appellant Clason) the said judgment.
    This allegation is, therefore, only in the nature of a plea In bar at common law; it must be tested by the evidence adduced in support of it. Joseph Siansbury, a witness examined on the part, of the appellant, Clason, says, that to the best of his knowledge and belief, the note was given by Sands for the purchase of certain stock, described in his answer to the preceding interrogatory, and that Isaac Clason & Co. were merely endorsers as sureties. Samuel Hunter, another of the appellant, Clason’s, witnesses,, declares, that Isaac Clason & Co. did endorse certain notes of Sands by way of sureties, and for Ms accommodation.
    The deposition of Stansbury declares the facts he stated, to the best of his knowledge and belief, without mentioning whence his knowledge was derived, or his belief deduced, or how much of his testimony is to be referred to his knowledge, and what part: to his belief. The established rale is, to detail the manner by which the witness acquired his knowledge, and to give the reasons of his belief, to induce the court to believe with him- There is no measure for a deposition of this nature. It must depend upon the degree of credulity of the witness, the estimate of which is not a task to be imposed on the court. This, therefore, was no> evidence at all.
    The deposition of Samuel Hunter goes to certain notes, without specification of dates, sums, or periods of payment, and can have no bearing on the points in controversy, having not the most remote reference to them, and is too vague and indefinite to establish or even corroborate any evidence of the facts which the appellant relied on.
    Another witness examined on the part of the appellant, was Comfort Sands. He deposed that the note given by him was for stock purchased, and that Isaac Clason <§• Co. endorsed the same for his accommodation, and as his sureties; he was a party in the original transaction; he stated the fact of the endorsement simply; he did not state whether any and what counter-securities were relied on by the appellant. His answer in the principal case, of which this case is only a branch, has been falsified. His acts have been deemed fraudulent in this court. He appears as a witness, on suspicious and questionable grounds, especially in a transaction connected with his bankruptcy; and I thought, all circumstances considered, his deposition, unsupported, could not be admitted as a competent ground for a decision on that point. If I was right, the doctrine of sureties had no application to this case.
    The receipt and assignment bear date on the samé day. The receipt contains no specification of the persons who had satisfied the judgment; but after stating the title of the cause, declares the payment to be in full satisfaction of the debt and costs recovered in the cause of Nicholas Loro against the defendant; and therp was no evidence to show who paid the judgment.
    2. As to the second point;
    The transactions of Comfort Sands were avoided, as far as respected the creditors w'ho were parties to the suit. As far as that avoidance might affect existing, though dormant liens, it kept them -where it found them. Its immediate legal effects could only touch the párties and the interests for which they contended. But if in the time intermediate the commencement of that suit and the decretal order, which declared those transactions fraudulent, Clason and Stanly had been disposed to enforce their legal liens, there could have been no impediment to pursuing the same course which those creditors pursued, unless by their interference they embarrassed the cause prosecuted by the creditors generally* The suspension of the proceedings which took place to enforce certain judgments, after the decree of avoidance was pronounced, was intended merely to operate, until the rescued fund could be converted into money, be brought into court, and distributed according to the rights of the different claimants. This court gave it a different destination, by placing the whole under the control of the assignees, and thus defeated the course indicated. Relatively, however, it created no new rights, nor impaired those vested in the parties, as to the court of chancery. If the legal remedy did not afford a priority of satisfaction, and a resort, to chancery became necessary, its maxim, in cases of this kind, is equality is equity,and as far as Clason mdStanly’s claims were just¿ they would be admitted to an equal participation of benefits with those of their more meritorious co-creditors in the general fund 5 but beyond that point, the powers of the court of chancery could not foe exerted, to destroy that equality, in favour of the appellant.
    3. As to the third point;
    The agreement as stated was, that the appellant Clason- agreed to accept the debt due to the firm of Clason and Stanly, one half in Washington lots, and ihe other half in the French debt. The appellant Clason, in his answer, admitted the agreement; he admitted that the judgment claimed by him and Stanly against Comfort Sands, was part of the debt to be so paid, which was constituted by the two judgments and the note for 3,200 dollars. That on the 13th of November, 1801, he received a deed for 33 lots in the city of Washington, as he suppesed, in part performance of that agreement, which was left in his hands ; that he did not examine the deed, nor agree to accept the same in any manner or for any other purpose, than the agreement aforesaid. He alleged that he had never received the French debt, or any assignment of it, and that the agreement had not been complied with. That he had not sold nor exercised any act of ownership over the Washington lots, as he did not, nor ever intended to, consider them as payment of his debt, or any part of it, unless after the fulfilment of the agreement.
    There was no evidence contradicting the appellant’s allegation, that he never received the French debt or an assignment of it; hut he received the deed for the lands in 1801, for no other purposes than for ihe agreement; and, whatever his intention may have been, his tacitly retaining it for so long a period, though unexamined, will bind him as effectually as if he had, in the most explicit manner, approved of it. It required no new expression of his intent. He had agreed to receive satisfaction, partly in those lots and partly in the French debt, and he did not object to receive the deed, on account of its not having been accompanied by an assignment of the French debt. It must, therefore, be taken in satisfaction of a part of that debt. If so, this has an important bearing, on Clason and Stanly’s debts, generally, as claimed by them against the effects of the bankrupt, for in the former part of the appellant Clason’s answer, he denied that he had received the deed for the Washington lots, on account, in any other mode than the agreement set forth by him. As to those lots and the French debt# that agreement, he insisted, was not, in part, complied with, by the delivery of the deed for the Washington lots; in conformity to which construction, (if he had received the 4,000 dollars, or any other sum in satisfaction, as, according to his answer, the Washington lots were not so received,) after stating that they were not hdcen, he adds, or agreed to be in full satisfaction ; here the word taken would have altered the meaning of the sentence, for if they j(aí¿ no¿ been agreed to be taken in full satisfaction, il would, in a great measure,have removed the uncertainty, for the agreement to be in full satisfaction, must be supposed to intend the actual acceptance, and not depending on a promise to take effect in future; and having airear dy declared that the Washington lots were not received in satisfaction,' he could on that ground allege that they had not been agreed to be in full satisfaction. The answer may be true to all common intents, though extremely evasive, and so exceptionable, as to the manner, that the defendant ought not to be permitted to avail himself of an experiment so palpably devised to elude the justice of the court.
    When a defendant so answers, though it might have formed a subject for exception, he must do it at much hazard; for in giving a construction to an answer, as the allegation of the defendant, in defence and affirmance of his right, deliberately interposed so as to guard his interests, the legal presumption must ever be, that he has made his case as full and available to himself as the truth would admit. Here, therefore, was so far from being an express denial, that the answer exhibited only a dexterous evasion, by which the respondents were left to support their case, not from any discovery made by the appellant, but by evidence solely.
    If this is a true exposition of the answer, then the deposition of George Knox, a witness on the part of the respondents, stands nnimpeached and uncontroverted ; he positively swears that the appellant, Clason, told him he had got 4,000 dollars for his debt, and let Sands out of gaol; that he expected no more-; and to evince the sincerity of his declaration, the witness declared, that the appellant, Clason, spoke of Sands in opprobrious terms, and advised the witness to settle a debt he had against him in the same way.
    I did not think the 1,000 dollars spoken of by Joseph Winter, as referrible to this transaction. It merely showed, that at • another time, a money transaction, to that amount, existed between Sands and the appellant Clason, but there was nothing in it which can give it a reference to the composition spoken of by Knox» There was evidence that the copartnership between Clason and Stanly was long since dissolved; and the bill having been taken 
      ffo confesso against Stanly, which entitled the respondents to a decree against him, and the proceedings against the appellant, Clason, concluding to the same point, it was useless to trace what might have been the effect of a different state of things.
    Upon the whole, T was of opinion that the debts due from Comfort Sands to Clason and Stanly were to be held as satisfied, and that they ought to be decreed to enter satisfaction of record óf the judgment described in the bill.
    
      Pendleton and T. A. Emmet, for the appellant.
    The whole
    answer of Clason must be taken to be true, and as evidence, unless contradicted by two witnesses. He states the agreement between, him and Sands ; and he denies that he accepted or received the deed for the Washington lots, in satisfaction of any part of the agreement. An accord and satisfaction must not only be an agreement to accept, but an actual acceptance in satisfaction; now, the deed was received on certain conditions which were never performed, and the answer denies that the appellant ever took possession of, or exercised acts of ownership over, the lots in Washington. The agreement was one and entire, and the appellant was not bound to accept a performance of a part, unless the whole was executed.
    
    The appellant has a judgment, and stands on his legal rights, and the respondents must show that they have fully executed the agree-meat before they can ask for equity. They stand in the place of Sands, and he clearly could not support such a claim.
    The conveyance of the 13th of November, 1801, was void under the bankrupt law, for Sands had then no estate. The complainants’ bill may be read as evidence against him in equity, though it cannot be in a court of law.
    
    The act of bankruptcy was in March, 1801, and the assignment of his estate was made the 18 th of July, 1801. Lewis Sands was a trustee. It was a trust for C. Sands,, and void; and the deed being void, any offer to confirm it was useless, for it was incapable of confirmation. The allegation in the bill as to the 4,000 dollars is wholly denied in the answer, and is not supported by witnesses.
    
    Again, the appellant stands here in the" character of a surety, and having paid the debt of his principal, he may call on the ereditor, who may be compelled,, in a court of equity, to assign toiiim every security held by the creditor, and to help the surety is-recover against the principal. The appellant, as surety, has-.pakl above 15,000 dollars for Sands, and a court of equity will give, him the benefit of every lien or security against Sands.
    
    That the bill has been taken pro confesso against S.tanly cannot affect the appellant. If one partner is abroad, and does not answer, the other will not lose his right.
    
    Though interest rests in the discretion of a court, yet the ap-. pellant is justly entitled to interest from the time the injunction was, issued.
    
    
      Riggs and Hoffman, contra.
    The petition presented by the. appellant below, and the proceedings on if, cannot be taken into view. It was dismissed with costs. There can be no appeal from that order. It is not before this court. And it- does not appear, except as stated in the petition, that L. Sands was a trustee, or when he became invested with the title.
    The ancient, doctrine of the English law, as to. accord and sa? tisfaction, has been overruled even in courts of law  and it never did apply where the money or compensation came from a third person, but only where the payment was made by the party himself. The cases which have been cited on the part of the appellant, show that the assignment df the security to the surety who pays the money, raises merely an equity, but gives, him no remedy . at law. This is not a legal security, but a mere equity; and there is a difference between equitable and legal-securities. Had there been an action at law brought on the judgment, there must have been a verdict for the defendant, for the judgment was satisfied.
    There is no proof to support the allegation, in the answer that the note of 3,200 dollars was not given ip evidence at. the trial at law, Or that it did not enter into the consideration of the jury in giving their verdict. In fact, it. is stated, that that, note was put ip suit, and property attached on. it in Georgetown, and-it does not appear whether or not the note was satisfied there. It must, therefore, be taken by the court, that the note has been paid or extinguished. The party must aver and prove that all. the notes were not given in evidence, otherwise, under the general averment in the declaration, and a general verdict, they will all.be deemed bound by the judgment, j-. The appellant cannot retain his. judgment in this case, and at the same time hold property; undeg. an attachment on the same note, in Georgetown. Where a vendos.. takes a distinct and independent security for the purchase-money, his equitable lien on the estate sold is gone.
    
    The appellant arid Stanly, as partners, must be deemed jointly ánd equally interested in the judgment assigned as security to the appellant, who must be considered as a trustee to Stanly for his half. A decree on a bill taken pro confesso is as effectual as a judgment by default at law. Such a decree cannot be impeached collaterally ; the only remedy is by a bill of review.
      Stanly’s rights are concluded by suffering the bill to be taken pro confesso, and ¿gainst him the respondents are entitled to a decree.
    Again, the answer of the appellant is evasive and contradictory, and one witness is sufficient against such an answer. He does
    hot deny that he ever examined the deed. If he did examine it, why not return it immediately ? Shall he be permitted to keep it for near seven years, and even to insist upon it indirectly, and yet be allowed to say that he never accepted it? Had the conveyance of the Brooklyn estate been adjudged valid, would he have given it up ? If he did accept the deed, either in whole or in part, his answer is false; and falsus in uno, falsus in omnibus. Knox, the witness, says Sands told him, after he was released from gaol, that he had given the appellant 4,000 dollars in settlement of the judgment; that the appellant, on being asked how much he got for his debt, answered, 4,000 dollars, and, after-wards, advised the witness, who was a creditor of Sands, to settle n ith him as he had done. Winter, another witness, confirms this statement. It is also corroborated by the fact, that the appellant did not prove his debt against Sands, and afterwards received the conveyance for the Washington lots.
    The acceptance of the deed by the appellant was not conditional, and he never afterwards entered into any explanation on the subject with Sands. He must be concluded by the considerations as expressed in it. The court will be disposed to carry the sums of 4,000 dollars and 3,200 dollars to the credit of the judgment. The balance on the judgment only ought to be paid, pari passu, with the other creditors.
    Yates, J.
    was absent.
    
      
      
        2 Anstr. 420. note. 1 Esp N. P. 149. S Anstr 657.
    
    
      
       1 Atk. 65.
    
    
      
       9 Ves. jun. 279. 3 Atk. 407. 12 Ves. jun.78.
    
    
      
       1 Eq. Cas. Abr . 93 2 Vern. 608. 11 Ves, jun. 12. 22. 2 Ves. 100. 371. 1 Atk. 135. 10 Ves. jun. 421. 6 Ves. jun. 734. 2 Johns. Cas. 227.
    
    
      
      
        Cooper's Eq.Pl 35.
    
    
      
       2 Ves. 587.
    
    
      
       2 Camp. N. P. 124. 383. 5 Johns. Rep. 386.
    
    
      
       2 Ves. 372.
    
    
      
       2 Ves. 569. 1 Ves. 339. 2 Anstr. 548. 2 Atk. 527. 10 Ves. jun. 119
    
    
      
       6 Term Rep. 607.
    
    
      
      
        Ambl. 724. 6 Ves. jun. 483. 752. Sug. Law of Vend. 352, 353.
    
    
      
       13 Ves. jun. 583, 2 Atk. 24.
    
    
      
       12 Ves. 78, 3 Atk. 407.
    
   Spencer, J.

The first question which I have chosen to consider, is, as to the effect of the hills being taken pro confesso against Stanly, circumstanced as this case is. If Stanly was the sole defendant, or had distinct rights, I agree that his default la appearing and answering would have been an admission of the facts, cliarged in the bill. In Davis v. Davis, (2 Aik. 21.) Lord Hardwicke says, with great-propriety, that the taking a bill pro coraj’gggg^ jn equity, is analogous to taking the declaration for true, where the plea or answer of the defendant is insufficient. He was there, however, speaking of a sole defendant; and, I believe, not a case can be found in which it is insinuated, that where there are two defendants having a joint interest, and one appears and' answers, and disproves the plaintiff’s case, that the plaintiff can have a decree against the other who had made default, and against whom the bill was taken pro confesso. It would be unreasonable to hold, that bécause one of the defendants had made default, the plaintiff should have a decree even against him, when the court is satisfied, from the proofs offered by the other, that in fact the plaintiff is not entitled to a decree. Though I have not met with cases in equity to the point, yet pursuing the analogy between proceedings at law and in equity, we are not without very clear authority; for it is a well settled principle of law, that In actions upon contracts, the plea of one defendant enures to the benefit of all; for the contract being entire, the plaintiff must succeed upon it against all or none; and, therefore, if the plaintiff fails at the trial upon the plea of one defendant, he can-not ^ave judgment'against those who let judgment go by default.

It would require the most binding authorities to induce me to yield my assent to such a proposition as that set up by thé respondents’ counsel; and, indeed, the result would be extraordinary, for if one defendant entitled himself to a decree, where the interest is joint and inseparable, a decree must be made in his favour as to a moiety of the matter in issue, and against the other who made default for the other moiety; that is, the plaintiff would get one half of a decree, and the other defendant the other half. It cannot be so •, we must consider C&sora’s defence as enuring to the benefit of 5'lardy.

I now proceed to examine the merits of the case; and the first inquiry will be, whether Ciason has a right to avail himself of the judgment recovered by Low against Sands ? This will depend on the fact, whether Ciason and Stanly were sureties for Sands or not in that transaction. This fact admits of no doubt.

Ciason, in his answer, avers the fact of suretyship, and he groves it* First, the endorsement of j&mds’s note by Clastm and Stanly, and the passing of that note by Sands to Low, is prima facie evidence of the suretyship. This is proved by Joseph Slansbury. Secondly, Sands proves that Clason and Stanly endorsed the note on which Low’s judgment was rendered, as sureties, and for his accommodation.

Now, though Sands has been guilty of a fraud, we are not to intend that he is perjured, nor will his executing fraudulent deeds have any other effect than to render him suspected, when he comes to swear in opposition to a more credible witness. But there is no proof at all, on the part of the respondents, impeaching the fact to which he deposes. It cannot, then, be doubted, upon any rules of evidence with which I am conversant, but that the fact is completely made out that Clason and Stanly endorsed Sands’s note as his sureties.

That a surety who pays a debt for his principal, has a right to be put in the place of the creditor, and to avail himself of every mean the creditor had to enforce payment against the principal debtor, is a principle which I had supposed incontestable. The case of Parsons and Cole v. Briddock (2 Vern. 608.) has never been questioned. In that case, the plaintiffs were bound as sureties for Mr. Briddock, and had counter bonds. Briddock0 the principal, was afterwards arrested, and Dr. Briddock became his bail, and judgment was obtained against the hail. The plaintiffs being sued on the original bond, were forced to pay the money, and then brought their bill to have the judgment obtained against the bail assigned to them, to be reimbursed what they paid, and it was held, and so decreed, that the judgment against the bail should be assigned to the plaintiffs, in order to reimburse them what they had paid, with interest and costs. Lord Eldon speaks of this case as a strong one, but by no means with disapprobation. It is a much stronger one than the case before us; here Low had a judgment against Sands, the principal debtor; he had a judgment also against Clason and Stanly, the sureties. The sureties pay the latter judgment; Low then does, voluntarily, what equity would compel him to do ; he assigns the judgment he held against Sands to Clason alone. This is not like the cáse of a bond by two obligors, where one of them pays the debt, and then wants to sue at law, in the name of the obligee. At this day, such a suit •would not entitle the obligor, who had paid the money, to any remedy which he could not have, in an ordinary suit in his own name, for money paid, laid out and advanced; but as to the bond, the payment by one, on the very instrument, is a satisfaction o£ tiiai debt, and the other obligor may plead it. Sands could not plead the payment of the judgment against Clason and Stanly, as á ' payment of the judgment against him. The respondents stand ill his place, and they can have no other or greater rights than Sands hád. That assignees of a bankrupt are bound by an equitable or legal lien, although they had no notice of its existence, is a very clear principle; (1 Bro. C. C. 420. 6 Ves. jun. 95. n. a.) for, as Sir Williani Grant observes, the assignment from the commissioners; by operation of law, passes thfc rights of á bankrupt precisely in the same plight and condition as he possessed them. (9 Ves, jun. 100.)

The doctrine contended for by the respondents’ counsel, that the lien created by Low’s judgment could not be extended and enforced in favour of Clason and Stanly, against Sands’s assignees, fhfcy being third persons, and strangers to it, is not sound. Thejr áre not third persons, but are precisely in the place of Sands ; besides, and which is also á sufficient answer to that objection, the liefi was not raised by the construction of equity, for it is a legal, not ah equitable lien. Low’s judgment was assigned to Clason solely; he, therefore, solely succeeded to Low’s lien. Stanly does not question that transaction ; Clason, therefore, must be deemed to have a distinct and separate right in that judgment.

The points next td be -considered are, whether Clason accepted the deed for the Washington lots, in such á manner as to conclude himself, and whether he has received 4,000 dollars in satisfaction of the other part of the agreement, and as a substitute for one half of the debt which was to have been paid out of á debt due Sands from the French government.

, There is no proof of the agreement or the acceptance of the deeds for the Washington lots, except Clason’s answer. His answer is certainly evidence against him; and it is also, on these points, evidence for him, unless disproved by one witness, and circumstances corroborating the testimony of that witness.

I can perceive nothing evasive in his answer upon these points; and should one part be susceptible of doubt and savour of evá- ■ ! sion, it would be incorrect to hold him down to that part, and disregard other parts of the answer which are full and explicit. Ah .answer, like any instrument, is to be construed by regarding it ás a whole, and by looking into the whole of it, and comparing one part with another. The mind of man is so ingenious, and the critic looks with such a microscopic eye, that unless courts give a fair construction to papers, by looking through them, no man can make an answer, if the case be a complex one, without being subjected to the charge of perjury.

I am persuaded that, but for an oversight, his honour the chan-, cellor would not have considered the answer evasive as to the payment of the 4,000 dollars.

The answer is full and explicit, that the conveyance for the Washington lots was left with the appellant, as he supposes, in part performance of the agreement; but he denies that he accepted, or agreed to accept, the same, in any manner, or for any Other purpose than the agreement, and that he gave no receipt for it.

Then3¡ as I construe the answer, the deed was received by Clason in expectation of the fulfilment of the agreement and he has suffered it to remain in his custody as an inchoate transaction, as one step taken towards the performance of an entire contract» He has a right, therefore, to insist that it did not operate as a performance of the agreement.

I cannot conceive how the answer could be. more full than it is> in denying the payment of the 4,000 dollars. Clason says that yeither he, nor any other person for him, hath received any estate or effects, real or personal, from Sands, or any other person, in satisfaction, or upon any agreement or understanding whatever, for or towards satisfaction of the moneys due him or any part thereof.

Georgs Knox is the only witness relied on to disprove Clason’s answer. He testifies not to any fact he has seen or witnessed, but to Clason’s declarations; and it is certain that, in the case of Only v. Walker, (3 Atk, 407.) the master of the rolls considered the declarations of the defendant as a circumstance corroborating a fact sworn to by a. witness, and not as direct proof against the answer. Mr. Knox was. called on to testify after the lapse of many years; and it is impossible to say (if we yield our assent t© all he has testified, what Clason meant, when he said he had let out Sands, and had got four thousand dollars for his debt) to what debt he referred, or whether the 4,000 dollars was in money or the Washington lands. Knox is certainly incorrect that Clason told him he had obtained judgment for his debt amounting to 15,000 or 16,000 dollars. No such judgment appears, to. have, fxisted at any time.

Giving to Knox’s testimony the utmost effect, it is one witness against the positive denial of the appellant, and there are no circumstances corroborating that witness of any weight or force. Whether the rule so well and firmly settled is just or unjust, we, are not liberty to examine: ita lex scripta est: and in my opinion (be answer of Clason must prevail.

I am, therefore, of opinion, that there is no ground for relief to the respondents, as respects the judgments; and the respondents having so. framed their bill as not to require the appellant to make his election whether to keep the Washington lots or not, but have prayed only that an entry of satisfaction of the judgments may be decreed, they have failed altogether, and the bill ought to have been dismissed, with costs.

Lewis, Wilkins, Bishop, Carl, Haight, Rouse, Stearns, Tabor, Tayler, and Townsend, Senators? concurred in this, opinion.

Thompson, J.

The respondents’ bill in the court of chan-. tiery had for its object, generally, a discovery of what was due from Comfort Sands, the bankrupt, to the appellant, Clason, and what payments he had received, and what property he had in his hands, belonging to Sands; and it prays relief against certain judgments which Clason was about enforcing against the estate of Sands.

The material and principal inquiry will be, whether the answer, ©f Clason has been disproved, so as to warrant the decree which has been made against him. It is an undeniable rule in chancery that the answer to a bill for discovery, being under oath, must be taken as true, unless disproved by two witnesses, or by one witness and circumstances warranting a presumption against the truth of the answer. (2 Atk. 19.) The respondents having thought fit to make the appellant a witness, they are bound by what he discloses, unless it is satisfactorily disproved. Where the answer and the testimony are at variance, it becomes a question of credibility. The answer is not to be discredited, or any presumption indulged against it, on account of its being the testimony of a party interested. He is. made a witness by his adversary, and it would be unjust to compel him to testify, and then consider his testimony unworthy of credit,, .because he is a party in the suit. This is not the light in which. Cat aiiswef is received in chancery. It is considered equal to the oath of one witness. And to warrant a decree against the answer, it ought to be satisfactorily disproved.

It will be necessary, in order to test the case before us by this K'ule, to look particularly at the discovery sought by the bill, and the answer given to it; for I apprehend, that with respect to many, and, indeed, most of the facts which have been considered material m this case, the answer stands uncontradicted, and, of course, must be taken as true.

The bill prays a discovery, first, as to what was due from Ct, ■Sands to the appellant, on what account, and how secured; and, secondly, what effects or property of Sands had come to his hands in satisfaction of his demánds, and under what agreement or un - derstanding it was so conveyed, assigned, delivered or paid» In answer to the first inquiry, the appellant states his demand to consist of a judgment in favour of Nicholas Low against Sands for 5,812 dollars and 61 cents, and which had been duly assigned to him; a judgment in favour of Clason and Stanly against Sands for 5,874 dollars and 6 cents; and, also, a promissory note for 3,200 dollars, which Clason and Stanly had paid as endorsers for Sands» To the inquiry on what account the demands accrued, the answer states that they accrued by reason of his having become security for Saiids. These facts are uncontradicted, and we are not at liberty to reject them. What the legal effect and operation of the payment and satisfaction of the judgment which Low had recovered against Clason and Stanly, as endorsers for Sands, would be upon the judgment which he had against Sands, as the maker of the note, and which was assigned to Clason, will be noticed hereafter. With respect to the note for 3,200 dollars, the prima, facie presumption would be, that it was included in the judgment of Clason and Stanly against Sands, as they had declared upon it. But this presumption may be rebutted by proof showing that It was not included. (6 Term Rep. 607.) And the answer furnishes this proof. It is a direct and proper reply to the inquiry made of the appellant, as to what was due from Sands ; and is explicit that it was not included in the judgment. As to the amount of the appellant’s demand, and on what account it accrued, there is no variance between the answer and the proof, and it must be considered as established, that it consists of the two judgments, and the note which I have mentioned.

The second branch of the discovery relates to the property received by Clason, and under what agreement it was received.

To this inquiry the answer states explicitly that the appellant has not received, nor has any other person received for him, or to his.use, from Comfort Sands, nor from any other person, on his behalf, any of Sands’s goods, moneys, debts, or any other thing, in payment and discharge of the said judgments, and the said 3,200 dollars, or of any part thereof, the whole of which amount, with the interest, is still justly due. This is as full and ample a negation of all payments as could possibly be made, and this general denial ought to be kept in view in the examination of the particular details of the answer; for the whole answer is to be taken together, and if any particular part is susceptible of a double meaning, or has the appearance of evasion, it ought to be so construed as to comport with the general denial. The detail is more the language of the draftsman, which the party may not be able to criticise, but the general denial is intelligible, and cannot but be understood by him; and, in this case, it is so broad and unqualified, that it must be taken for an absolute denial of the acceptance of the deed for the Washington lots, or the receipt of the 4,000 dollars as stated by him.

The answer of the appellant, as to the nature and terms of Ihe agreement between him and Sands, relative to the payment and satisfaction of his demands, is made evidence by the prayer in the bill for a discovery as to that agreement. And the answer states the agreement to have been, that the appellant was to be paid one half of his demand out of a debt due to Sands from the French government, and the other half in lots in the city of Washington, at the price originally paid for them by Sands. There is no evidence whatever tending to show that such were not the terms of the agreement. What is said in the answer as to the manner and circumstances under which the deed for the Washington lots was delivered, is drawn out by the inquiries in the bill. It states that the conveyance for these lots was left in the appellant’s possession, as he supposes, in part performance of the agreement before mentioned, but that he did not, at that time, to the best of his remembrance and belief, even examine it, nor did he accept, or agree to accept, the same in any manner, or for any purpose, other than the agreement aforesaid. This answer has been treated as equivocal and evasive, because it says he did not, at that time, accept, or agree to accept, the deed, leaving it open to the inferxince that he might hax7e done it at some other time. There might be some plausibility in this criticism, if this part of the answer was to be taken alone, and unconnected with other parts. But when he adds, that he did not, nor did he ever intend to accept or consider those lots as payment of his debt, or any part thereof, unless upon the terms of the agreement aforesaid, and upon the fulfilment thereof, it is impossible to mistake his meaning, or give any other reasonable construction to the answer, than that it amounts to a total denial of an absolute acceptance of the deed; but that it was left with him in part fulfilment of the agreement, which was to be completed and settled on the performance of the other part by Sands. This was, by no means, an unusual or extraordinary course of proceeding. Clason might, perhaps, have elected to consider this an absolute delivery, and binding upon Sands; but when he positively denies that he ever did accept it, or intend to accept it, as payment, to consider it an unconditional acceptance, would be forcing upon him a partial fulfilment of an entire agreement, in the face of established principles of law. And what evidence is there opposed to this positive denial of any acceptance of the deed? Nothing but the circumstances of the deed remaining in his possession, and his not proving his debt before the commissioners of bankruptcy. These are circumstances, however, of little weight, when we consider the situation in which Clason was placed. He had strong reasons to suspect that Lewis Sands, who had executed the deed to him, was a mere trustee for his father; and if so, the deed would be void, being given after the bankruptcy of C. Sands. Proceedings were about this time instituted in chancery by the creditors of C. Sands, to be relieved against certain fraudulent conveyances made by C. Sands to his sons; which, if effected, would let in the judgments held by the appellant against Sands. He had a right to lay by, waiting events, and not exhibit his claim to the commissioners. No acts of ownership have been exercised over the Washington lots; and to construe a mere silence into an acceptance of the deed would, under the circumstances in which the appellant was placed, be unreasonable.

With respect to the 4,000 dollars charged in the bill to have been received by the appellant, in addition to the said lots, in full satisfaction of all claims and demands, the answer fully and positively denies the receipt of that sum, or any other sum, at imy time, in satisfaction or discharge of the appellant’s demands, or on any other account, or for any other purpose whatever. 1 am unable to discover any ambiguity whatever in'this denial. It *s a full, complete, and unequivocal negation of the charge in the bill, and superadds the broad denial of the receipt of that sum, at any time, or on any account. In this particular, and in this only, jg the answer contradicted by any testimony. Knox swears that a few days after Sands was discharged from imprisonment, he met Clason and asked .him how much he had got for his debt against Sands; to which he answered 4,000 dollars. This proof is certainly contradictory to the answer. I see no ground upon which they can be reconciled. It is, however, only oath against oath, and the allegation in the bill stands without proof. This alone would be a sufficient answer. But I think there are some circumstances tending to show that Knox must be mistaken, if he means to be understood as saying, that Clason told him he had received that sum in cash. The bill charges the money to have been received in the year 1805; and the conversation spoken of by Knox must have been in 1801. Knox says Clason told him Sands was indebted to him 15,000 or 16,000 dollars, and that he had obtained judgment for the said debt. No such judgment appears as the foundation of the appellant’s claim. And it is certainly worthy of notice that this is only proof of a confession made in a casual conversation, several years ago, liable to have been misunderstood, or to have been forgotten by lapse of time. Sands was himself a witness, and the respondents must have known from the answer, that it was necessary for them to support the allegation in the bill by more than one witness; the omission, therefore, to make the inquiry of Sands, if chargeable as neglect in either party, must rest on the respondents. I think, upon the whole, we may safely conclude that the facts- denied by the answer are as strong, if not stronger, than those affirmed by the deposition of Knox, which brings the case within the rule, that no decree can be made against the appellant upon such evidence.

The only remaining inquiry is, how far the respondents are entitled to the relief prayed for, as to an entry of satisfaction of these judgments. The judgment assigned by Low to the appellants must, I think, be considered unsatisfied, and as a legal lien on the property. Had the judgment against the endorsers been paid and discharged, without at the same time taking an assignment of the judgment against the principal, it might have operated as,a satisfaction of that judgment. But the appellant stands before the court as a purchaser and assignee of the judgment, and the money paid by him was the consideration for the assignment. The judgments against the principal and the security are separate and distinct. I see no reason why the security may not purchase a judgment against the principal as well as any other person. None of the cases cited on the argument warrant a different conclusion; (2 Johns. Cas. 231. 2 Vern. 608.1 Atk. 135. 2 Ves. 172. 570.) and a contrary doctrine would seem unreasonable and unjust. With respect to the other judgment, (assuming the answer of the appellant to be true,) there is no pretence of its having been satisfied. The two judgments are, therefore, in force, and entitled to priority of satisfaction. I think, however, that the appellant ought not to be allowed more than a moiety of these judgments» For it appears from his answer, that the consideration for the assignment of the one was paid by Clason and Stanly. And although the assignment was made to Clason alone, yet he must be deemed a trustee for Stanly as to a moiety ; the other judgment stands in the name of Clason and Stanly. They are, therefore, to be taken as joint owners of both judgments. And the bill having been taken pro confesso against Stanly, is an admission, on his part, of satisfaction so far as his interest is concerned. The answer or defence of Clason cannot enure to the benefit of Stanly. (1 Caines’ Cas. in Er. 121.) I have not met with any case in the books where a bill has been taken pro confesso against one only of several defendants. But in order to give the force and effect to this default, which is contemplated by the statute, the proceedings must, thereafter, be considered in the nature of separate suits, especially, where the nature of the controversy is such as to admit of distinct consideration, and separate relief. Where the defence set up goes to the essence and foundation of the claim made by the bill, and that is wholly destroyed by the party appearing, there may be some difficulty in enforcing the decree against the party who has suffered the bill to be taken pro confesso. But in the present case, we may consider Clason as attempting to enforce the collection of a debt due to himself and his copartner, when his copartner has acknowledged satisfaction as to his claim. If Stanly is to be considered jointly interested with Clason, it was no doubt competent to him to release or acknowledge satisfaction, so far as his interest is concerned, and his default as equivalent to such acknowledgment; and his rights are to be viewed in the same tight as if he had appeared and aijgwered, and confessed the facts stated in the bill. No injustice is done to Clason; a moiety is all he shows himself entitled to. If the sole and exclusive right to the partnership debts has been transferred to him, he ought to have shown it. This answer, it is true, states a dissolution of the partnership in 1803; and that by an agreement between him and Stanly all the property, debts and effects of the copartnership became vested in him solely. The dissolution of the partnership is proved, but there is no evidence of the agreement in relation to the partnership concerns. The answer, in this respect, is not evidence. It does not form a part of the discovery sought by the bill; and if the appellant claimed the sole right to these judgments, he should have proved the agreement set up in his answer. The testimony on this point is insufficient. The witnesses only state that it was generally understood that Clason was the principal partner of the firm, and that the funds were furnished by him, and that he had the principal, if not the sole direction of the business, after the dissolution. This testimony is too vague and uncertain, either to establish the terms of the partnership, or the transfer of the partnership property to the appellant. As the facts now appear before us, Clason and Stanly are equally interested in these judgments, and the appellant is only en titled to receive satisfaction for a moiety of them. No interest, however, ought to be allowed. The appellant relies on his legal lien, and was about enforcing payment by execution, under which he could not have recovered interest. The judgments were upon promissory notes. And at law, no interest subsequent to the judgment can be recovered under the execution, unless the judgment is upon a penalty., The same rule has been recognised in chancery. The question - of interest rests, perhaps, in the sound discretion of the court, and I should be inclined not to allow it on these judgments, 'because the interest is not a legal lien on the land; and as it is this lien on which the appellant rests, he ought to be satisfied with what he would have recovered had he proceeded under his executions. (6 Johns. Rep. 284. 2 Ves. jun. 157. 162.)

With respect to the deed for the Washington lots, I should rather incline to leave it untouched by the present determination. It is not made necessary, by the state of the case, to decide upon it. The bill in the court of chancery does not seek for any relief against this deed. It has been drawn in question only by the allegation of its having been accepted in satisfaction of the appellant’s demand, but which the respondents have failed, to establish. The' appellant may have an equitable lien on these lots, for the payment of the note of 3,200 dollars, and his other small account, and which ought to be taken into consideration, if the present decree is to extend to that deed.

I am, accordingly, of opinion, that the appellant is entitled only to a moiety of the two judgments, and that satisfaction thereof ought to be entered, on his receiving that amount.

Kent, Ch. J. and Van Ness, J. were of the same opinion.

Platt, Hall, Hopkins, Phelps, and Livingston, Senators, also concurred.

A majority of the court being of opinion that the decree of the chancellor ought to be reversed in toto, it was thereupon ordered, ad judged, and decreed, that the decree of the court of chancery be reversed, and that the respondents’ bill be dismissed; and that 1 the respondents pay to the appellant his costs in the court of chancery to be taxed, and that the record be remitted, &c.

March 24, 1812. 
      
       1 Lev. 63. 1 Sid. 76. 1 Keb. 284. 2 Tidd, 805.
     
      
       For reversing in toto. 11. For reversing in part 8.
     