
    Nicholas Longworth v. Jacob J. Flagg.
    A decree of dismissal of a bill of foreclosure is no harto a suit on the note.
    Matters of defense, arising after plea filed, can only be taken advantage of by plea puis darrein continuance.
    This was an action of debt from the county of Hamilton.
    The first count of the declaration was upon a sealed note. The second and third were general counts.
    The defendant pleaded non est factum and payment, with notice of set-off. He further gave notice, at a subsequent term, that he should offer, in defense, proof that the note was secured by mort301] gage upon land; that a bill of foreclosure *and sale had been brought to enforce satisfaction of the note which had been dismissed on hearing.
    The case was submitted to the court upon proof.
    V. Worthington, for the plaintiff:
    The relation between a mortgage and the note it secures, is simply that of a security to a principal. The mortgage is a mere incident to the note. The latter has an existence independent of the former, arid retains its validity, notwithstanding a release or discharge of the mortgage. Where a debt is secured by a mortgage without any note or bond, there a discharge of the mortgage would discharge the debt; and in such case the remedy is not in personam, but by bill to foreclose, or ejectment, or both, at the option of the creditor. Cumberland w. Codrington, 3 Johns. Ch. 229; Dunkley v. Van Buren, 3 Johns. Ch. 330; Schoole v. Sall, 1 Sch. & Lef. 176; Perry v. Barker, 13 Ves. 197, 205; Reedy v. Burgert, 1 Ohio, 157 ; Barclay v. Blodget, 5 Cowen, 202; 3 Powell on Mort. 1002; Hatch v. White, 2 Gall. 152; Amory v. Fairbank; 3 Mass. 562; Omaley v. Swan, 3 Mason, 474; Mi. Ex. Co. v. Bank United States, Wright, 249.
    But the discharge of a mortgage has no effect whatever on the note, whether such discharge be direct by the act of the party, or indirect, by the dismissal of a bill to foreclose. The operation of such bill is to subject the mortgaged property to the payment of the debt, and when that property is exhausted, all further action under the bill determines; but the right to recover any balance that may remain, in a personal action on the note, is as perfect as if the bill had never been prosecuted. The dismission of a former bill in chancery is not conclusive even against a second bill, unless the parties bo the same, and there be an absolute decision, upon the same matter, apparent on the record. Whenever a legal claim is sought to be established in a cour^of chancery, the refusal to determine the right casts no reflection whatever upon it, but simply determines that it is not a case for equitable cognizance. Neafie v. Neafie, 7 Johns. Ch. 1; Wright v. Deklyne, Pet. C. C. 199; *Hopkins v. Lee, 6 Wheat. 109; S. C., 5 Pet. [302 Cond. 23; Lawrence v. Hunt, 10 Wend. 80. To constitute a former recovery an estoppel, it must appear by the record itself of that recovery, that the precise point which is to work the estoppel was put in issue and decided. Genet v. Wood, 3 Wend. 27; Wright v. Butler, 6 Wend. 284; Wood v. Jackson, 8 Wend. 9; Lawrence v. Hunt, 10 Wend. 80; Etheridge v. Osborne, 12 Wend. 399; Wood v. Genet, 18 Wend. 107; Howland v. Ralph, 3 Johns. 20; Rice v. King, 7 Johns. 20; Jackson v. Hoffman, 9 Cowen, 271; Gardner v. Buckbee, 3 Cowen, 120; Manny v. Harris, 2 Johns. 24; Brockway v. Kinney, 2 Johns. 210; Snider v. Croy, 2 Johns. 227; Neafie v. Neafie, 7 Johns. Ch. 1; Dawson v. Cowles, 16 Johns, 51; Phillips v. Berrick, 16 Johns. 136; Trevivan v. Lawrence, 1 Salk. 276; S. C., 2 Ld. Raym. 1036; Sedden v. Tutop, 6 D. & E. 607 ; Outram v. Morewood, 8 East, 346; Sintzenick v. Luchas, 1 Esp. 43; Smith v. Sherwood, 4 Conn. 276; Church v. Leavenworth, 4 Day, 274; Ryer v. Atwater, 4 Day, 431; Betts v, Starr, 5 Conn. 550; Jackson v. Colden, 4 Cowen, 266; Newcomb v. Smith, 5 Ohio, 447.
    
      Estoppels are odious, and are. not to be favored. A technical accuracy is required,, and they must be certain to every intent, and not be taken by argument or inference. Smith v. Sherwood, 4 Conn. 276 ; Hubbard v. Norton, 10 Conn. 422 ; 3 Thos. Coke, 431. It is equally well settled that an estoppel must be set up and presented by a plea in bar, and not as evidence under the general issue. Manny v. Harris, 2 Johns. 24; Rice v. King, 7 Johns. 20. Etheridge v. Osborne, 12 Wend. 399; Smith v. Sherwood, 4 Conn. 276; Wright v. Butler, 6 Wend. 284; Trevivan v. Lawrence, 1 Salk. 276; Kilheffer v. Herr, 17 Serg. & Rawle, 319; Gardner v. Buckbee, 3 Cowen, 120; Wend v. Jackson, 8 Wend. 10; S. C., 18 Wend. 107; Vooght v. Winch, 2 Barn. & Ald. 662. To this rule, ejectment and indebitatus assumpsit are exceptions. In these actions, a former recovery is admitted under the general issue. Vooght v. Winch, 2 Barn. & Ald. 668; Bartholomew v. Candce, 14 303] Pick. 167 ; Trevivan v. Lawrence, 1 Salk. 276; *Young v. Black, 7 Crunch, 565; S. C., 2 Pet. Cond. 607; Wood v. Jackson, 8 Wend. 35; S. C., 18 Wend. 107; Jackson v. Colden, 4 Cowen, 280; Gardner v. Buckbee, 3 Cowen, 120; Outram v. Morewood, 3 East, 364; Piatt v. St. Clair’s Heirs, 6 Ohio, 234. But the onus probandi iswith him who assumes the affirmative. Church v. Leavenworth, 4 Day, 274; Piatt v. St. Clair’s Heirs, Wright, 266 ; Howell v. Cin. Ins. Co., 7 Ohio, 283, pt. 1; Hewson v. Saffin, 7 Ohio, 234, pt. 2; Smith v. Sherwood, 4 Conn. 276; Genet v. Wood, 3 Wend. 27; S. C., 8 Wend. 45; Lawrence v. Hunt, 10 Wend. 80.
    B. Storer, for the defendant:
    The plaintiff’s counsel has saved us the labor of quoting authorities to show the effect of final judgments and decrees. His brief embodies a very great number, and to it we ask a reference.
    All we contend for is, that where the parties are the same, the subject matter the same, the same point directly involved, there the judgment is final.
    There have been cases where parol evidence has been admitted to prove that a cause of action was not litigated in a prior suit; and this is by averment, depending always upon the nature or the claim, and the fact that it was never passed upon by the court or jury, for if the matter in dispute was submitted for consideration to either tribunal, the finding is conclusive. With the matters litigated between these parties in equity, there is left no room for intendment as to the particular point intended to be decided by the court. The equity of the entire case is found to be with the defendant; and there can be no collateral issue made as to what it was meant to embrace, much less an attempt to prove what the opinion of the court should have been. 1 Stark. Ev. 198-200, and cases there cited.
    It will be admitted that it is immaterial what the form of action is, if the cause is the same. The resolutions in Ferrer’s case, 6 Co. 7, which are the foundation of all the subsequent decision are “that when one is barred in an action, real or ^personal, [304 by judgment or demurrer, confession, verdict, etc., he is barred as to that, or the. like action of the like nature, for the same thing, forever.”
   Lane, C. J.

The record of the suit in chancery shows a dismissal upon the finding, that the equity of the case is with the defendant. The proposition of the defendant, arising from these facts, is, that the dismissal of a bill of foreclosure on the merits, extinguishes the debt secured by the mortgage, and concludes all rights between the parties.

While the remedy upon mortgages in this state'was. bj scire facias, before 1831, it was held that the rights betweeu the parties were merged in such a proceeding, because they terminated in a judgment, which is a form of debt of a higher nature than any depending on the acts of the parties only. 1 Ohio, 157. But the right to pursue all or either of the three remedies on a mortgage at the same time, is asserted in every elementary treatise on this subject, for the objects of the three are not the same; and although if the debt is paid the lien is extinct, the converse of this proposition is not true, and the debt may be justly due, although the land is never bound by the lien.

If it were otherwise it would be no defense in the form offered here. The suits were pending at the same time, and the decree of dismissal was not. made, until after the plea filed, although before the notice, which was appended at a subsequent term. The defense, then, if .available, arose after the plea filed, and can not bo raised, except by a plea after the last continuance.

Remanded for trial on the plea of payment. 
      
      When matter of defense has arisen after the commencement of the suit, it can not be pleaded in bar of the action generally, but must, 'when it has arisen before plea or continuance, be pleaded as to the further maintenance of the suit; and when it has arisen after issue joined puis darrein continuance. Bret v. Papillon, 4 East, 502; 1 Chit. Pl. 650; Covell v. Weston, 20 Johns. 414. A receipt in full, from one of several plaintiffs, dated since the last continuance, is sufficient evidence to sustain a plea of payment puis darrein continuance. Neil et al. v. Hepburn, 6 Ohio, 534.
     