The defendant, in his sale of the land subject to the first mortgage, made an adequate appropriation of his property for the payment of this note; and the benefit of this appropriation had been received by Rand, in his sale of the second mortgage, when he paid the note. Rand was equitably as well as legally bound to pay it. Practically, it was paid out of the property appropriated by the defendant for its payment; and the equity of the case is with him as it would have been if the payment had been made by him in person with his own money. There is nothing to take the case out of the general rule of discredited and paid notes. Equity does not require that the defendant should be compelled to pay the note a second time, and incur the risk and expense of collecting it for the benefit of the plaintiff. The payment of it being intended, and understood by Rand to be an extinguishment of it, it was, in fact, paid; and there is no ground of justice to support a legal fiction of equitable assignment.

Judgment for the defendant.

FOSTER and BINGHAM, JJ., did not sit: the others concurred.