"What proceedings will constitute an assent to this contract, and discharge the original debtor ? Will a demand of the money have this effect ? An individual who should receive advices from his debtor of a deposit of money for his benefit, would hardly deem a demand of the money, accompanied by a refusal of payment, a discharge of the prior debt. A suit to recover money is no more decisive evidence of an election to receive it than a demand; and the bringing of a suit cannot be considered evidence of an assent to a contract, and thereby support the action, which had no foundation until it was brought.
"To entitle the plaintiff to recover, there must be an extinguishment of the original debt; and it is questionable whether in cases of this kind, any thing can operate as an extinguishment of the original debt but payment, or an express agreement of the creditor to take another person as his debtor in discharge of the original claim." See also Scott v. Porcher, 3 .Meriv. 652; and Baron v. Husband, 4 B. & Ad. 614.
1 In Bedford v. Deakin, 2 B. & Al. 210, one of three partners, after a dissolution of partnership, undertook by deed to pay a particular partnership debt on two bills of exchange, and that was communicated to the holder, who consented to take the separate notes of one partner for the amount, strictly reserving his right of action against all three, and retained possession of the original bills, the separate notes having proved unproductive ; it was held that the creditor might still resort to his remedy against the other partners, and that the taking the separate notes and receiving them several times, did not amount to a satisfaction of the joint debt. In delivering the judgment, Mr. Justice Bay ley says: "In this case, all the three partners originally were jointly liable to this debt; and no arrangement between themselves can vary the right of the creditor. That right, however, may be destroyed by the creditor consenting to accept of the separate security of one partner in discharge of the joint debt, and that is the foundation of the decision in the two cases cited from Espinasse's Reports; but there is no such consent here. The three notes which the plaintiff took from Bickley (two of which have been successively renewed, but one not) cannot amount to a satisfaction of the joint debt; unless, first, they were bility of the drawee is sufficient consideration. The same consideration supports the original and the subsequent promise.1
The mere conditional claim against the original creditor would not, on principle, seem to interfere with the holder's when taken by the plaintiff, intended by him as a satisfaction for it; or unless, secondly, the conduct of the plaintiff has, without the fault of Deakin, produced mischief to him." See also Wilson v. Coupland, 5 B. & Al. 231. The same rule, also, was laid down in Robinson v. Read, 9 B. & C. 449. In Reed v. White, 5 Esp. 122, where the separate bill of one owner of a vessel was taken for a claim against the vessel, Lord Ellenborough said: "If the plaintiff, dealing with White separately, has adopted him, he has discharged the others.""The question is, whether it was intended as a settlement with him alone, and adopting him as the single debtor." See post, § 979, 979 a. See also Cuxon v. Chadley, 3 B. & C. 591. In this case J. C. being indebted to S., and R. C. being indebted to S. and also to J. C, it was verbally agreed between the three that S. should transfer the debt due to him from J. C. to the account of R. C, and S., in pursuance of such agreement, delivered to R. C. an account in which he (R. C.) was charged with the debt due from J. C. to S., and it was held that J. C. was not thereby discharged; and the ground of this judgment was, that there was no proof of any agreement as between S. and J. C. to extinguish the original obligation, the mere entry in the books not having that effect. Abbott, C. J., said: " S. is not proved to have said, ' I will take you, Robert, as my debtor, and discharge James;' he is not proved ever to have said or done that which would have the effect of discharging J." "I consider the entry ['to your brother's account, £14 Is.'] made by S. to mean no more than this: ' I will debit the account of R. for £14 Is., not, I will discharge J. at all events from this sum." It amounts, at most, to an accord, but certainly not to a satisfaction." In Tatlock v. Harris, 3 T. R. 180, a bill of exchange was drawn by the defendant and others, on the defendant alone, in favor of a fictitious person (which was known to all parties concerned in drawing the bill), and the defendant received the value of it from the second indorser; and it was held that a bond fide holder, for a valuable consideration, might recover the amount of it in an action against the acceptor, for money paid or money had and received. Lord Kenyon, in delivering the judgment of the court, says: "In making this decision we do not mean to infringe a rule of law which is very properly settled, that a chose in action cannot be transferred; but we consider it as an agreement between all the parties to appropriate so much property to be carried to the account of the holder of the bill; and this will satisfy the justice of the case without infringing any rule of law." In Drake v. Mitchell, 3 East, 257, one of three joint covenantees gave a bill of exchange for a part of a debt secured by the covenant, on which bill judgment was recovered; and it was held that the judgment was no bar to an action of covenant against the three, though stated to have been given for the payment and in satisfaction of the debt, not being averred to have been accepted as satisfaction, nor to have produced it in fact. Lord Ellenborough says : "One may agree to accept of a different right against the drawee, and there seems to be no sufficient reason to require its absolute extinguishment. The holder would, of course, be bound primarily to look to the drawee, and to omit no proper steps to obtain payment; and, until the condition failed, would have no right as against the original drawer. There may, of course, be cases where an order is taken as absolute payment; and whether it be or not is a question of fact for a jury to determine.1 But ordinarily, in the common transactions of business, the taking of an order is not understood to amount to a discharge of the principal. Of what value would the order be, if the holder could not compel payment by the drawee ? and why, to render it available, should he be obliged absolutely to abandon his original claim ? There is no reason why he should not hold both. If collateral or secondary security may be held, why not primary security ? It is clearly established that the taking of a bill of exchange, drawn upon a third person, only operates as a conditional payment, and may be sued against the drawee if accepted,- why the same rule should not apply to cases of mere orders, it is difficult to perceive. At all events, this doctrine would seem to be supported by the main body of authorities, and to be best supported on principle. The objection that without an extinguishment of the original debt, there is no consideration to uphold the new promise of the drawee, seems scarcely tenable. The obvious consideration is, the right of the drawer to make the order, the existence of the debt, and the convenience resulting from the change of parties. The drawer has an undoubted right to give the order, and the liasecurity in satisfaction of his debt, but it is not stated here that the bill and note were accepted in satisfaction." See also Hennings v. Rothschild, 4 Bing. 334; Ward v. Evans, 2 Ld. Raym. 928; Hawley v. Foote, 19 Wend. 516.