1795. Executors of V. Kennedy. But admitting, however, that Kennedy was only a collateral 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 eivil 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. 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 that 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 Where a man know whether it was for a joint debt, or not. With remortgage, he gard to the foreclosing the mortgage, that was a matter his remedy in entirely optional with the mortgagee or assignee; for equity and at wherever a man has a bond and mortgage, he may pursue has a bond and may pursue law at the same time. 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. 1795. Executors of V. Kennedy.. GWIN and Wife, late Widow of HICKS, against The CASE for two years rent of a plantation, 240 dollars. The case was this: The fee of the land was in Mrs. Hicks, at the time of her first marriage, and Mr. Hicks planted it with his negroes, and died in the latter end of May, or beginning of June, after the crop was considerably ad vanced. In the winter following she married her second husband, Mr. Gwin; but the negroes of Mr. Hicks continued on the land all the remainder of the year, year following. This was therefore a suit brought for two years rent of the land. But, and the By the Court. He that plants must reap; and as the life estate in the land was in Mr. Hicks when he planted the crop, it must go over to his executor for that year, without rent; but for the second year they ought to pay rent. The jury found accordingly for the second year, 240 dol lars-say, for 120 acres at two dollars per acre. * This case was omitted among those of 1793. Where the commission ers named in a writ of dow or parcel of of the whole ceased hus The Creditors of JOHN SCOTT, deceased, against SARAH UPON a claim of the widow for dower. In this case a petition for dower had been presented on er, give a wi- behalf of the demandant, Mrs. Scott, and a writ for the addow one tract measurement of it had gone out to certain commissioners, land, in lieu in the usual form, commanding them to admeasure unto of her de- the widow, and assign her dower in several tracts of land band's estate, described, some of which were lots in town with buildings it is bad, and thereon; others consisted of lands in the country. The aside, on ap commissioners had executed and returned the commission, plication of creditors. stating that they had assigned, and put the plaintiff in posbound to give session of a house and lot in Broad-street, in lieu of her of each sepa- dower in all the lands which belonged to the deceased. will be set They are her one-third rate tract or parcel, or to assess a sum in lieu thereof, on every parcel, unless it is agreed by the heir or ereditors to the contrary. And now at the adjournment day of May term, 1791, Read moved that the return of the commissioners might be confirmed and made final: Whereupon, Pinckney on behalf of the creditors of the estate of the deceased Mr. Scott, who apprehended that there would be a deficiency in the estate for the payment of the debts, took exceptions to the proceedings of the commissioners, and moved that the return might not be recorded, until the objections on behalf of the creditors were heard and decided upon by the court. The objections were that the commissioners ought to have assigned the dower out of each tract, and not to have taken the most valuable part of the estate, and given that in lieu of the whole, (as this was stated to be.) That in so doing, they had very much impaired the value of that lot out of which the whole dower was assigned, and rendered it unsaleable and unproductive, being encumbered with her life estate. He contended that they had no right to do this, under the 1795. act which authorised them either to assign dower in the common way, or to assess a sum of money (if they found Creditors of the other to be inconvenient) for and in lieu of her whole dower. Read, for the plaintiff, argued, that the court could not take notice of the creditors of Scott's estate, because they had no privity of estate, or interest in the lands; their claims were against the executor in respect to the assets in his hands. He further urged, that the powers of commissioners, under the act of assembly, were large and extensive; that they are made the sole judges between the widow and the heir, touching the quantum of dower; that they are to proceed upon the view, and that their decision is declared to be "firmly binding and conclusive between the parties." He compared the present with sundry cases in which dower had been assigned by the heir in the same way as the commissioners have assigned in this case, and which had been supported by the court. He further observed, that the assigning of dower out of every house and every tract, would be much more likely to render the property unsaleable, by loading each with a life-estate, to the great inconvenience of the purchaser. Pinckney, in reply, contended, that the creditors of the estate, and particularly the judgment and execution creditors, who held an immediate lien upon the whole estate, were competent parties in this case. That this assignment went immediately to impair their remedy, and the court would take notice of them. That the lands in fact belong to them, and not to the heir, until the debts are paid. The commissioners, he said, came in lieu of the sheriff, who was the proper officer at common law, to admeasure and assign dower-and, like him, are liable to have their pro ceedings set aside, if they be contrary to law. To shew that the demandant in dower is to have a third part of each tract or parcel, and not one tract or part of a tract, "in "lieu of her dower in all," he cited Co. Lit. 32. 6. He inVOL. I. 3 S Scott V. Scott. * sisted that dower stood on the common law footing; that the act of assembly had made no alteration. Cited also 2 Black. 136. that dower must be set out with metes and bounds, a third part of each parcel; also, Co. Lit. 33. 6. The creditors, he said, were willing she should have her ample dower; but that it should be according to law. That they had a right to insist upon this, as the estate was insol vent, and ought so to be marshalled, that the creditors may lose as little as possible. RUTLEDGE, Ch. J. and BAY, J. As this is a new case, and is to form a precedent, it therefore ought to be solemn ly decided. We will consult the other judges, and give our opinion on the return day. We have, however, no doubt at present as to one point, which is the right which the creditors had to be heard on the point, the estate being conceded to be insolvent; in which case they stand in the place of the heir at law. On the return day, the court considering the novelty and magnitude of the case, ordered the great question, to wit, whether the commissioners could assign the whole dower out of one tract, to be argued again next term. The case was afterwards fully argued by Pinckney and Ford, for the creditors; and Read and Pringle, for the demandant. After which RUTLEDGE, Ch. J. delivered the opinion of the court to the following effect: The act of assembly makes no alteration as to the mode of assigning dower; because the words of the act follow the words and form of the judgment, and habere facias in dower at common law. Lilly's Entries, 270. 598. Lit. 3. 36. 2 Black. Com. 129. 2 Bac. Abr. 118. The act indeed, gives the commissioners a power to relinquish the admeasurement of dower altogether, and of assessing a sum of money in lieu thereof. But one or the |