1789.
tion, it does not define what ſhall be deemed a payment or exinguiſhment.
There is no fair ground to aſſert that Hamilton received an adequate ſatisfaction by converting the intereſt into principal; for, he was entitled to have his intereſt punctually paid; and the books of Chancery have gone ſo far as to declare, that, where money is in arrear upon a mortgage, it was not uſury to take intereſt upon the intereſt. In the caſe from Cro. J. 579 indeed, the intereſt was alſo added to the principal; but this the Court did not confider a ſufficient bar. Nor was Hamilton benefitted in reſpect to time; for, the bond was given, not to ſhorten the period of payment, but to protract it; as the money was actually due, and ought to have been previouſly paid.
After conſidering the cafe 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 tracts 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 been any 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 fold 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 ſo much of the mortgage money?
The Court, is 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 cafe, 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
ſhortened.
