is payment in neither case unless it is agreed to be so taken; and if so agreed, it is equally payment when taken for an antecedent debt as when taken for a debt contemporaneous with the agreement. Porter v. Talcott, 1 Cow. 383.

In England the distinction is recognized. In an action for the price of corn, Bayley, J. said, "if the notes had been gi ven to the plaintiff at the time when the corn was sold, he could have had no remedy upon them against the defendant. The plaintiff might have insisted upon payment in money; but if he consented to receive the notes as money, they would have been taken by him at his peril. If indeed he could shew fraud, or knowledge of the maker's insolvency in the payee, then it would be wholly immaterial whether they were taken at the time of sale or afterwards." Camidge v. Allenby, 6 Barn. & Cress. 373, 13 Eng. Com. Law Rep. 203. This seems to be according to the decisions in the time of Lord Holt.

rule as to the effect of What is the rule now

9. How Lord Holt lays down the taking a bill or note in payment. when bill or note is taken for a precedent debt; when it is a satisfaction; when not.

Lord Holt held that if A sells goods to B, and B is to give a bill in satisfaction, B is discharged though the bill is never paid, for the bill is payment; but a bill should never discharge a precedent debt. Clark v. Mundell, 1 Salk. 124, 12 Mod.

He reiterates (in 2 Ann) that taking a note for goods sold is a payment because it was part of the original contract; but that paper is no payment, where there is a precedent debt. Ward v. Evans, 2 Ld. Raym. 928, Com. 138, 6 Mod. 36, Salk. 442, Holt 120. And Powell, J. agreed that the taking of such a note is no payment, for it is always a conditional acceptance, and so understood not to be a discharge till paid. Lord Holt added, that if the party who takes the note, keep it by him for several days, without demanding it, and the person who ought to pay it becomes insolvent, he that received it must bear the loss; because by detaining the note in his custody he prevented the other person from receiving the money. S. C.

In Massachusetts it has long been held that when a debtor by simple contract gives his own negotiable note for it, such note is presumed to have been accepted in satisfaction and discharge of the pre-existing debt. Thacher &c. v. Dinsmore, 5 Mass. 299; Herse &c. v. Alexander, 2 Metcalf 162. But this presumption may be rebutted by evidence that such was

not the intention of the parties. Slight evidence is sufficient to rebut the presumption, when the note is not the note of all the original debtors but only of some of them or their agents. Maneely v. McGee &c. 6 Mass. 143; Emerson v. Providence Hat Man. Co. 12 Id. 237; French v. Price, 24 Pick. 13; Butts v. Dean, 2 Metcalf 76; Melledge v. Boston Iron Co. 5 Cush. 170.

If for what is sold a partnership, a note or bill be taken from one of the firm, there is at least room for question whether it could have been intended to adopt him as the single debtor and discharge the other partners. Reed v. White &c. 5 Esp. 122; Schermerhorn &c. v. Laines &c. 7 Johns. 311; Kean &c. v. Dufresne, 3 S. & R. 233; Sheehy v. Mandeville &c. 6 Cranch 264; Arnold v. Camp, 12 Johns. 409. Not only in this, but in other cases, it would seem best to act upon the rule that a bill or note will not be treated as an absolute payment or extinguishment of a precedent debt unless it be so expressly agreed. This is the rule in England; 1 Salk. 124; Brown v. Watts, 1 Taunt. 353; in New York, Murray v. Gouverneur &c. 2 Johns. Cas. 441; Tobey v. Barber, 5 Johns. 72; Johnson v. Wood &c. 9 Id. 310; in Maryland, Glenn v. Smith, 2 Gill & J. 494; Phelan &c. v. Crosby, 2 Gill 470; Morgan v. Betzenberger, 3 Id. 355; and in most of the

states.

It is going very far to say that a man has not been paid for his goods, when he alone who is interested in a denial of the payment, acknowledges that something which he has received, was received by him in payment. This however is res adjudicata in Maryland. At the foot of an account against a decedent there was a receipt for two promissory notes (signed by his executrix and endorsed by a firm) "in payment of the above account." These words were regarded as importing not an acknowledgment that the original debt was absolutely paid nor an agreement to take the notes in absolute payment and to discharge the decedent's estate from all further liability; but only that the notes when paid should be in discharge of the original debt, shewing on what account they were given and to prevent a recovery on both causes of action. Glenn v. Smith, 2 Gill & J. 508.

In a subsequent case, at the foot of the bill was written, "Received payment for above as follows." After specifying a particular note and mentioning the principal and interest thereof, there was an item "cash for balance 91;" and then followed the signature. It was considered that when the creditor thus acknowledges that the balance of his claim has been paid, and paid to him in cash, he ought not to be allowed

to say that the whole debt except that balance is still due. Phelan &c. v. Crosby, 2 Gill 471.

10. When creditor receives bill or note, what must be done with it, to enable him to recover the original debt.

If the receipt state that the bill or note when paid will be in full of the account, or if such be the understanding or intention, it is sometimes soon ascertained that the instrument is of no value; for example, it may be a bill drawn on a person who refuses to accept it. In such case suit may, immediately on such refusal, be maintained on the original demand. Stedman v. Gooch, 1 Esp. 4; Puckford v. Maxwell, 6 T. R. 52; Mussen v. Price, 4 East 147; Hickling &c. v. Hardy, 7 Taunt. 312, 2 Eng. Com. Law Rep. 118. But if the instrument be a note or accepted bill payable at a future day, the right of action on the original debt is suspended until the instrument becomes due. If then payment of it be duly demanded and notice given of its dishonour, an action may be maintained on the original debt. Herring v. Sanger, 3 Johns. Cas. 71; Putnam v. Lewis, 8 Johns. 389; Fellows v. Prentiss, 3 Denio 518. Generally speaking, there is no obligation before bringing such action to sue on the note. Clark v. Young & Co. 1 Cranch 181, 1 Curtis 392; Martin v. Pennock, 2 Barr 376.

The statute of 3 & 4 Ann, c. 9, § 7, provides that "if any person doth accept any such bill of exchange for and in satisfaction of any former debt or sum of money formerly due unto him, the same shall be accounted and esteemed a full and complete payment of such debt, if any such person accepting of any such bill for his debt doth not take his due course to obtain payment thereof by endeavouring to get the same accepted and paid, and make his protest as aforesaid, either for non-acceptance or non-payment thereof. Bishop v. Rowe, 3 M. & S. 362; Swinyard &c. v. Bowes, 5 Id. 62.

There is a like rule as to other negotiable instruments. When received in satisfaction of a precedent debt, they will be accounted a payment thereof unless the person receiving the same takes due course to obtain payment-making proper presentment, and in case of dishonour giving notice thereof. Camidge v. Allenby, 6 Barn. & Cress. 373, 13 Eng. Com. Law Rep. 201. It may be otherwise when the note is without the words "or order," as was the case in Plimley v. Westley, cited ante, p. 224.

The effect of altering a bill or note has been treated of in chapter 14, ante, p. 137. Where a bill was given by the

drawer to the endorsee in payment for goods sold, and the endorsee after the bill had been accepted, altered the time of payment, whereby the bill was vitiated, it was held that he could not resort to the original consideration and recover the price of the goods. For as a bill of exchange will operate as a satisfaction of a preceding debt if the holder makes it his own by laches-as by not presenting it for payment when due so here the endorsee by altering the bill in a material part made it his own as against the purchaser of the goods and caused it to operate as a satisfaction of the debt for which it was originally given. Alderson v. Langdale, 3 Barn. & Adol. 660, 23 Eng. Com. Law Rep. 155; Martendale v. Follet, 1 New Hamp. 98.

In the action for goods sold and delivered, if it appear that a negotiable note has been given for the price, it should be produced, if it be in the power of the plaintiff. Hays v. McClurg, 4 Watts 452. It is enough that it has been delivered to the defendant; or is in court at the trial. Morgan v. Bitzenberger, 3 Gill 355; Zurano &c. v. Wilson &c. 8 Cush. 424. When it is produced at the trial, it is no valid. objection that it had been negotiated for value; notwithstanding the remarks in Finlayson's Leading cases in pleading, p. 123 of 9th edi. The author of that work seems to suppose that when a bill is negotiated for valuable consideration, this consideration is payment of the original debt; so that though the party who thus negotiated the bill is afterwards obliged to take it up, and holds the instrument unpaid by any prior party, he has no right of action on the original debt. But this is not the law. On the contrary it is settled that notwithstanding such negotiation of the bill, if it be taken up by the vendor and is produced at the trial, he may recover on the original account. Alcock &c. v. Hopkins, 6 Cush. 492. If, however, the bill or note be outstanding the plaintiff will be non-suited. Spear &c. v. Atkinson &c. 1 Iredell 262. Though the bill or note was received by him as a conditional payment, he is not allowed to recover on the original debt when the bill or note has been passed off by him, and at the time of the trial is beyond his control. Harris v. Johnston, 3 Cranch 316, 1 Curtis 592; Holmes &c. v. D'Camp, 1 Johns. 36, 7. The effect of the loss of the instrument has been stated in chapter 24, ante, p. 220.

CHAPTER XXXIX.

ACTION FOR MONEY LENT.

1. Where the action is against a partnership.

There is no doubt of the general rule that an action will lie for money lent by the plaintiffs to the defendants. Sometimes it is attempted in this form of action to charge a partnership with money lent to one of the firm. Loyd Sc. v. Freshfield &c. 2 C. & P. 325, 12 Eng. Com. Law Rep. 149. If one partner borrows money on his own private credit, his afterwards applying it to the partnership uses is not enough to enable the lender of the money to charge the partnership. S. C. 9 Dow. & Ry. 19, 22 Eng. Com. Law Rep. 382. On the other hand, where a general partnership exists, and money is borrowed by one of the firm, in the name of the firm, all the partners are liable, although the money when obtained be appropriated by the partner borrowing it to his own use. So also they are liable where one of the firm borrows money (not expressly on his individual credit), and it is shewn that it was borrowed for and appropriated to the use of the firm. Church v. Sparrow &c. 5 Wend. 223.

2. Where the action is against a bank.

It has been already mentioned, that money in the hands of a banker is merely money lent, with the superadded obligation that it is to be paid when called for by the draft of a customer. Ante, 1 Rob. Pract. 474. A banker, as the depositary of his customer's money, is to pay from time to time, such sums as the latter may order, and can only charge the customer with sums paid pursuant to his order. If, unfortunately, the customer's money be paid upon an order which is not genuine, the banker must suffer. Levy v. Bank of U. S 1 Binn. 27, 4 Dall. 234. If the banker pay more than was authorized by the order, as signed by the customer, the banker cannot charge the customer beyond what he authorized. Hall &c. v. Fuller &c. 5 Barn. & Cress. 750, 12 Eng. Com. Law Rep. 368. This at least is the general rule. There has been one exception. In a case wherein a customer had signed blank checks, and left them with his wife to fill up, and she filled them up in such a manner that the holder was enabled to add to the amount, it was held that the bankers who had paid this