The main points in this case were decided, when it was formerly before this court, on exceptions. 9 Met. 367. It was then held that prima facie the judgment against Clark, the promisee, on a note given by Clark to the defendant, long before the defendant’s note payable to Clark on demand had been indorsed to the plaintiffs, was a good set-off. The only question left open by the decision was, whether the transactions between the defendant and Caldwell amounted to a payment of Clark’s note to the defendant. We are now satisfied by the facts stated in the report, that the transactions in question did not amount, in legal effect, to a payment of Clark’s note to the defendant.
Caldwell attached the goods of Clark, soon after Brooks’s mortgage, to secure a debt due to himself, and contested Brooks’s title to them. Brooks gave him notice of his mortgage on the same goods, and commenced an action which he did not prosecute. Caldwell paid Brooks seventy dollars; gave him a bond of indemnity against this note; held the goods under his attachment; obtained judgment against Clark, and applied the proceeds of the goods to satisfy his own judgment. These goods, therefore, though mortgaged to secure Clark’s note to Brooks, never went to pay it, but did go to satisfy another debt. The bond of indemnity, given by Caldwell to Brooks, so far from an undertaking to pay Brooks the debt due to him from Clark, was a guaranty to him, that he had another and distinct legal and equitable defence to it, which he, Caldwell, was willing to insure.
We do not think it necessary to consider whether Brooks took a good title under his mortgage, or could have held the goods or not. Taken as collateral security, they gave him an additional remedy, which he might avail himself of, or not, at his choice. Such collateral security did not deprive him of any other remedy which the law gave him. Nor would it amount to a satisfaction, until some proceeds should be realized from it. Rice v. Catlin, 14 Pick. 221. In the present case, the defendant received none of the proceeds of the collateral security. The property was attached by *308another creditor of Clark, Caldwell, who contested the validity of the mortgage; and Brooks, having another remedy in his set-off, declined that contest, let the property go on the attachment, and the entire avails of it went to satisfy other debts of Clark, the mortgagor.
It is then urged, that it appears by the bond of indemnity, now introduced, that the defence is made for the benefit of Caldwell; and if so, that it cannot prevail. We cannot perceive the force of this argument. Caldwell attached the property for a debt admitted to be due to him, contested Brooks’s title, and insisted on his own. It appears that he had a good title against every body but Brooks, and he insisted that Brooks had a good defence, by way of set-off, against his note to Clark ; and he undertook to guaranty this, and take upon himself the responsibility of maintaining it. Why then should not such a legal defence prevail, although it may enure to the benefit of Caldwell, by leaving his attachment good ? It appears to us that it must stand upon the same footing as if no such bond had been given.
Judgment for the defendant.