The Court are of opinion, that the direction ■ of the judge was right. The giving of an assignment or other collateral security, by the principal, is no bar to an action against the surety, unless there be some stipulation to that effect on the part of the creditor. Years may elapse after such an assignment before any money will be realized from the assigned property ; in the mean time, the obligation of the surety is, to pay the money immediately. Were the surety thus to pay, it might well be held in equity, that the creditor should stand as trustee for him for the assigned property.
The most favorable view to be taken for the defendant is, that the creditor being himself the assignee, when the assigned property is reduced to money, it operates by way of payment pro tanto. But the whole amount of the notes being due presently in money, payment of a part is no bar, and operates as no suspension of the cause of action for the balance. In ordinary cases of assumpsit, any payments may be given in evidence to reduce the damages, made after the action brought, up to the very day of the trial. So in a case like the present, there was a good cause of action when the notes became due; but on the inquiry of damages, any payments, resulting from the assignment or otherwise, made before the trial, would properly be deducted. But for the residue, the plaintiff had a good cause of action, when his suit was commenced.
Judgment on the defendí*