
    John Watkins, by Guardian, versus Charles Hill.
    A promissory note given to a creditor is not payment of the previous debt, where it is not intended as such by the parties.
    Where a mortgage is given to secure payment of a note, and the assignee of the mortgage takes a new note from the mortgager, in exchange for the old one, it not being intended as payment, the mortgage debt is not thereby paid, but the mortgage remains good as security for the amount due on the new note, as against the mortgager himself.
    Whether the exchange would operate as payment of the first note, as against a purchaser under the mortgager, quare.
    
    This was a writ of entry on a mortgage. Plea, non disseisivit.
    
    At the trial, before Morton J., the demandant gave in evidence a deed of mortgage from John Howard to Simeon Tufts, dated April 4, 1818, to secure the payment of two notes for 300 dollars each, and an assignment of the mortgage from Tufts to the demandant, dated August 10, 1819, and acknowledged August 14, 1827. The demandant also gave in evidence a promissory note of Howard, dated April 4, 1822, payable to Watkins on demand with interest. It was admitted that this note was given for one of the notes described in the mortgage, the other having been paid. It was also proved, that since the date of the last note Howard had said that he did not think the mortgage was discharged ; that it was not the intention of the demandant and himself to discharge it ; that the old note was worn out, and that he gave the new one instead of it, and that he did not think of the mortgage, and did not believe that the demandant did, as nothing was said about it when the notes were exchanged.
    The demandant is under the guardianship of Edward Wade, who returned an inventory of his property into the probate office, which inventory was made by the tenant and others as appraisers, and contains the following item : — “ John Howard, note and mortgage, $300.”
    The tenant took and held possession of the demanded estate as administrator of Howard, who died after the return of the inventory. A default was entered, subject to the opinion of the whole Court.
    
      Hoar, for the demandant,
    cited Davis v. Maynard, 9 Mass. R. 242; Caryv. Prentiss, 7 Mass. R. 63 ; Perkins v. Pitts, H Mass. R. 125.
    
      Stearns and C. Lewis, for the tenant.
    
      Oct, 17th
    
   Parker C. J.

delivered the opinion of the Court. Whatever effect, if any, the exchange of the notes might have had as against a subsequent purchaser of the land mortgaged, it is very clear, that as against Howard, the mortgager, it could not operate as a payment of the debt secured by the mortgage. It was not so intended, as appears by the declarations of Howard, in respect to the transaction; and then, leaving the mortgage uncancelled is of itself sufficient evidence against him, unless he could show, by evidence, an intentional payment of the note described in the mortgage. Now the administrator who defends the suit, cannot set up a defence, except fraud, which the mortgager himself could not do. The transaction was a very natural one, as represented by Howard himself, and there is nothing in it which either legally or equitably destroys the security of the demandant in the mortgage.

Motion to take off the default overruled. 
      
       See Pomroy v. Rice, 16 Pick. 24.
     
      
       See Pomroy v. Rice, 16 Pick. 22; Fowler v. Bush, 21 Pick. 230; Van cleef v. Therasson, 3 Pick. (2d ed.) 14, note.
     