The opinion of the court was delivered

— We must judge of the duties of these parties by *399their written agreement, and that shows simply a debt due by one party, and payable presently, and the transfer is collateral security therefore, of the right to receive a debt from another person. This made two persons the debtor of Bail, and so far as it appears, it was the duty of them to come or send without delay, and pay the amounts due by them respectively. But they both neglected, and the collateral debt was lost. Who must bear the loss ? i

It seems clear to us that Smouse, the real owner of the claim must lose it. If he had performed his own duty by paying the .debt, his title to the collateral would have immediately revested in himself, and -he could have controlled the collection of it as he pleased. He cannot complain that it was held for the purpose forwhich it was given.

The debt was not lost by the want of diligence by Bail, but because he did not give back the claim to Smouse, so as to enable him to make an arrangement which Bail could not have made. Surely it is plain that Smouse had no right to this, until he should pay his debt to Bail.

Judgment affirmed, and record remitted.