4

ANDREWS v. SCOTTON. 6§§

fected by any stipulation as to the mere time of payment. It is a
mode of proceeding, necessarily incident to such a contract; be-
cause every particular of it, is a matter of record; and that too, in
a court peculiarly fitted and competent to relieve against any acci-
dent, mistake or fraud that has happened, or may be discovered.
Such a contract is not within the statute of frauds; and there is
nothing left open for litigation or trial before another tribunal, or even
before this court, which cannot be fully and satisfactorily inquired
into and determined in the most summary way. The form and
nature of the contract, precludes controversy, and supersedes all
trial. There is, however, one, and but one question arising out of
it left open, and that is, whether or not the money has been paid
as stipulated ?

But when a sale has been made on a credit, and bonds have
been taken to secure the purchase money, it has long been the
established practice, after the day of payment has elapsed, to sue
upon the bonds; which shews, as it is said, that they alone are
looked to, and that all other modes of proceeding have been ta-
citly waived. But the bonds in such cases, are intended only as
an additional assurance. And it would be contrary to all the ana-
logies of the law, to construe the taking of one security, into an
abandonment of another, where there was no incompatibility in the
existence of both.

Thus it has been held, that although the statute requires the
party who sues out a commission of bankruptcy, to give bond with
surety, to answer to the party who may be injured thereby, does not
deprive the party injured, of any remedy at common law, other
than upon the bond. He can, it is certain, have no more than one
satisfaction for the injury, but to obtain that, he may sue either at
common law on the special circumstances, or upon the bond, (h)
So, the importer of merchandise becomes thereby, a debtor to the
government for the amount of the duties imposed by the act of
congress. But the law indulges the importer with a credit, on his
giving bond for the duties; yet the giving or not giving of a bond,
does not supersede the right of action which accrues to the govern-
ment by operation of law on the importation. The government
may sue the importer on such legal liability, considering him as
its debtor, or it may sue upon the bond, if one has been given.

(h) Brown v. Chapman, 3 Burr. 1418; Ex parte Gayter, 1 Atk. 144; Holmes 9.
WaineWright, 1 Swan. 23.