Hamilton Exor. v. Callender's Exors.

After considering the case and arguments, the Chief Justice, at the present term, delivered the opinion of the Court: M‘Kean, Chief Justice. The case appears to be this:—That the Testator of the Defendants gave a mortgage to the Testator of the Plaintiff on four several trails of land. The heirs of the mortgagor sold the equity of redemption of three of these tracts to Mark Bird, who, afterwards (on the 3d day of May 1783,) executed a bond for 651. to the mortgagee; and this bond, being for the amount of the interest then due upon the mortgage; also bore interest. No receipt, however, for the bond, for the interest, nor, indeed, any minute of the proceeding, was entered upon the mortgage; nor has any express proof been offered that the bond (upon which there has not been ally thing paid) Was accepted as a satisfaction pro tanto of the money due on the mortgage. The three tracts of land conveyed to Mark Bird have been sold in order to satisfy the mortgage; but, proving insufficient, the question now arises, on the circumstances which I have stated, whether the bond given by Mark Bird is to be taken, either in law Or equity, as a payment, discharge, or recompense, for fo much of the mortgage money? The Court, having maturely considered the case, are of opinion that the bond is not a payment pro tanto of the mortgage money: for which opinion they will content themselves with declaring the general principles, and referring to the authorities whence those principles are deduced. 1. First, then, one judgment cannot be pleaded in bar of another, which is of equal nature and dignity, no more than one bond, or obligation, can be pleaded in bar of another. Cro. E. 817. 2 Bac. Abr. 552. 2. In the second place a bond, which is no satisfaction of another bond, cannot be deemed a satisfaction of a mortgage, which is a security of a higher nature. To render it a satisfaction, it ought to better the Plaintiff’s case, in point of safety, and expedite the time of payment; for, a bond with sureties will not be a satisfaction of one without, unless the time of payment is thereby [424] shortened. 1 Stra. 427. 1 Brownl. 47. 71. 68. 69. 1 Mod. 225. 2.Mod. 136. Cro.I. 570. Cro. C. 85. 86. 3 Lev. 55. 1 Salk. 124. 1 Burr. 9. 2 Wils. 87. 3. And, in the third place, as there is no entry of the bond in question upon the mortgage, shewing that it was received in payment or satisfaction of the interest then due, nor any proof that it was so intended by the parties, a presumption naturally arises, that the bond was merely taken as a collateral, or supplementary, security; and no debt, or duty, can be extinguished, but by a security of a higher nature than the first. For there reasons, we decide the question submitted by the Referrees to the Court, in favor of the Plaintiff, and direct judgment to be accordingly entered upon the report.