Motion for a new trial. The testimony was too voluminous to be reported. The following are the principles, as announced by Howard, J., upon which the decision of the Court was made.
A renewal of the note, secured by such mortgage, is not such a payment as will discharge the mortgage, unless so intended by the parties.
"Where the mortgagee taires, for the amount due upon the mortgage, the note of the assignee of the mortgager, including annual interest, and gives up to such assignee the notes of the mortgager, this, unexplained, is not to be considered as a mere renewal of the mortgager’s note, but as a substitution of a new security, and is such a payment as to discharge the mortgage.
If the mortgage debt has been paid, no action can be maintained upon the mortgage, even though it has not been formally discharged.