delivered the opinion of the court. The plaintiff complains, that Ogden hav-jng sold to Philips a slave, whom he had pre*310viously mortgaged to the plaintiff, Philips sent him out of the state to prevent the exercise of ^ p}a]1)tjfp?s on the slave; that Ogden jiag no vjsj^]e property, and the plaintiff is likely to lose his debt. Judgment is prayed in so-lido against both defendants.

Ogden filed no answer, Philips pleaded the general issue. There was a verdict and judgment as prayed for, and Philips appealed.

The third possessor has his option to pay the debt or surrender the property. He may, therefore, without injury to the creditor, remove or sell it If he sell it, he is discharged, if he remove it he must pay or bring back the property mortgaged.

But he cannot be called on till thirty days after a demaud made on the mortgagor. Code of Practice, 48, 70.

In the present case, there is no other evidence of the plaintiff’s call on the mortgagor than the present suit which the plaintiff was not authorised to bring till thirty days after the demand. There is no evidence of Ogden’s alleged insolvability.

It is therefore ordered, adjudged and decreed, that that the judgment of the district *311court be annulled, avoided, and reversed; that there be judgment as in case of and that the plaintiff pay costs in both courts.