delivered the opinion of tbe 'court.

It is by no means apparent to our understanding that Hazletine was clothed with authority to bind Hall in the manner implied in the instructions of the court below.

The assignment to Hopkins & Co. was of “so much of the amount due upon the mortgage and bond executed to him (Hall) by Rogers, as should be sufficient to satisfy the note” now in suit — the one-half to be paid out of one, and the remainder out of a subsequent installment falling due by said bond and mortgage — and the specific and only power which seems to have been conferred upon Hazletine was “to have use and take all lawful ways and means for the recovery of so much of the money due upon the bond and mortgage” which had been thus transferred in part to Hopkins & Co. “as shall be sufficient to discharge the said note at the time herein before stated„”

It may be as well to state here as elsewhere, that “the times” or periods above alluded to, when the note was thus to be discharged, were the first day of January, 1843, and the first day of January, 1844 — concurring, in that respect, with the periods when the installments secured by the bond and mortgage which he had received from Rogers and assigned (in part) to cover this indebtedness would fall due. It is proper to add, also, in this connexion, that the transfer or assignment to Hopkins & Co., was prior in date, and (as we think) had priority in every other respect to any of the subsequent assignments; and that as it seems by no means ambiguous or uncertain in its terms, there is neither necessity or priority in construing it in reference ,to the phraseology of the subsequent assignments.

*456We have perhaps thus, already, sufficiently denoted our disconcur-rence in the assumption, that under circumstances like those detailed in the statement of this case, the subsequent assignees could compel Hopkins & Co. to exhaust their remedy upon the note before they were allowed to proceed upon the mortgage. On the contrary, it appears to us that the governing and preponderant equities would indicate the exact reverse. Were it otherwise, however, as contended by the counsel for the defendant in error, it should be deemed a sufficient answer for all the practical purposes of this case that- they did not so construe either their rights or their authority, when interposing themselves as parties and assenting to an arrangement wholly unauthorized by Hall, (and for which they are of course alone responsible,) whereby the security he had provided for them was not only not pursued according to the mutual implied arrangement, but broken up and ultimately squandered and scattered amongst others.

The wrong thus inflicted upon the defendant is unalleviated by answering thgt he might even yet overturn the unauthorized if not collusive arrangement by which it is alleged he was defrauded of much which should have been realized for him under the mortgage, even beyond the claims of his creditors. We think his remedy (pro tanto at least) ik appropriately here, now — it being a sufficient defence to the action pending against him upon the note, to plead and prove as he has done, the virtual acceptance of another and higher security, from which more was realized than is now claimed, and which (to say the least) it was the plaintiff’s own fault that it was permitted to go into the hands of others instead of their_own. It is therefore dear to our minds that to those persons alone can the plaintiffs here look; and that the judgment of the court of Common Pleas must consequently be reversed, and the cause remanded for further proceedings in conformity with this opinion.