Stewart v. Lee, Mood. &Malk. 158; Smith v. Jameson, 1 Esp. 114. But see Can v. Read, 3 Atk. 695.
1 Com. Dig. Accord, B. 1, B. 2; Bac. Abridg. Accord & Satisfaction, A.
2 Fitch v. Sutton, 5 East, 232; Steinman v. Magnus, 11 East, 390; Down v. Hatcher, 10 Ad. & El. 121; 2 P. & Dav. 292; Wright v. Acres, 6 Ad. & El. 726; Seymour v. Minturn, 17 Johns. 169; Bailey v. Day, 26 Me. 88; Wheeler v. Wheeler, 11 Vt. 60; Blanchard v. Noyes, 3 N. H. 518; Warren v. Skinner, 20 Conn. 559; White v. Jordan, 27 Me. 370; Goodwin v. Follett, 25 Vt. 386. But see Milliken v. Brown, 1 Rawle, 397, 398; Kellogg v. Richards, 14 Wend. 116; Perkins v. Lockwood, 100 Mass. 249 (1868); Harriman v. Harriman, 12 Gray, 341.
3 See Brooks v. White, 2 Met. 283; Smith v. Brown, 3 Hawks, 580.
4 Smith v. Brown, 3 Hawks, 580.
5 Sibree v. Tripp, 15 M. & W. 35, where Cumber v. Wane, 1 Strange, 426, is examined. Qucere, if the negotiability of the note be important. Nothing is said on the point in Ellsworth v. Fogg, 35 Vt. 355 (1862), or in Draper v. Hitt, 43 Vt. 439 (1871).
6 United States v. Child, 12 Wall. 232 (1870).
7 Fitch v. Sutton, 5 East, 232; Cooper v. Parker, 15 C. B. 823; 29 Eng. Law & Eq. 241; Thomas v. Heathorn, 2 B. & C. 477; 3 D. & R. 649; Pinnel's Case, 5 Rep. 117; Brooks v. White, 2 Met. 283; Sibree v. Tripp, 15 M. & W. 35.
§ 1343. Another special defence which may be pleaded is that the debtor has discharged the contract by giving his own negotiable security. The giving of his bill of exchange, promissory note, or other negotiable security by the debtor only operates as a conditional payment, unless the parties expressly or impliedly agree to consider it as an absolute payment.6 The party receiving such bill or note is bound strictly to perform all the duties of holder or indorser as he may be; and until the security is due his right to sue upon his original claim is suspended or not, according to the terms of the transaction, to be determined by the express language used or by the circumstances of the case.7 But a want of proper presentment or notice, or an unreasonable delay by which loss is occasioned,8 or an improper alteration of the bill or note,9 would absolve the debtor. Upon the dishonor of the bill or note, however, if the creditor be not in default, his original rights revive, and are the same as if the bill or note had never been given.1 If the security be taken, however, as an absolute payment, all right of action is gone upon the original debt, although the note or bill be dishonored. Where a debtor's own security, not negotiable, and of no higher nature than the simple contract, is taken therefor, it will not ordinarily be considered as payment, unless there be an express agreement so to treat it, or unless it be given in renewal of a security of the same nature.2 But it is for a jury to determine whether it was intended as a payment.3 Where a check is given, it only operates as conditional payment, unless it be accepted as absolute payment;4 and upon non-payment by the bank upon whom it is made, it is of no avail as evidence of payment.5
1 Boyd v. Hitchcock, 20 Johns. 76.
2 Kellogg v. Richards, 14 Wend. 116.
3 Randall v. Moon, 12 C. B. 261; 14 Eng. Law & Eq. 243; Goodwin v. Cremer, 16 Ib. 90; 18 Q. B. 757; Tarin v. Morris, 2 Dallas, 115; Stevens v. Briggs, 14 Vt. 44; Goings v. Mills, 1 Pike, 11.
4 Andrew v. Boughey, Dyer, 75 a; Pinnel's Case, 5 Rep. 117; Sibree v. Tripp, 15 M. & W. 35; Brooks v. White, 2 Met. 285; Douglass v. White, 3 Barb. Ch. 621.
5 Blinn v. Chester, 5 Day, 359.
6 See Wheeler v. Schroeder, 4 R. I. 383; Coburn v. Odell, 10 Foster, 540; Roberts v. Fisher, 65 Barb. 303 (1873); 43 N. Y. 159; Allen v. Clark, 65 Barb. 563.
7 Note to Swift v. Tyson, Redfield & Bigelow's L. C. 195-217.
9 Alderson v. Langdale, 3 B. & Ad. 660.
§ 1344. Again, if the promissory note or bill of a third person be accepted by the creditor by his own voluntary act or choice, and not as a measure of necessity, there being nothing else to be attained, it will constitute a payment.1 "Whether the security were accepted as a satisfaction of the original debt is, however, a question for a jury.2 But if the bill or note of a third person be so accepted, it will constitute a sufficient payment, although it afterwards turn out to be worthless.3 Where there is a sale for cash, the taking of a negotiable security will not be considered as payment if there were no original stipulation to take it,4 or if the creditor were induced to take it by the fraudulent misrepresentation of the vendee as to the solvency of the parties thereto,5 or if it be forced on the vendor by the necessity of the case,6 or if it be forged.7
1 Puckford v. Maxwell, 6 T. R. 52; Owenson v. Morse, 7 Ib. 64; Peter v. Beverly, 10 Pet. 567; Sheehy v. Mandeville, 6 Crancb.,253; Wallace v. Agry, 4 Mason, 336; Van Ostrand v. Reed, 1 Wend. 424; Bank of Troy v. Topping, 9 Ib. 278; Burdick v. Green, 15 Johns. 247; Davidson v. Bridgeport, 8 Conn. 472; Elliot v. Sleeper, 2 X. H. 525; Geiser v. Kershner, 4 Gill & Johns. 305; Reed v. Upton, 10 Pick. 525; West Boylston Manuf. Co. v. Searle, 15 Ib. 230; Chapman v. Durant, 10 Mass. (Rand's ed.) 51, n. a; Chapman v. Searle, 3 Pick. 45; Zerrano v. Wilson, 8 Cush. 424.
2 2 Greenleaf on Evid. § 521; Howland v. Coffin, 9 Pick. 52; Cum-ming v. Hackley, 8 Johns. 202; Edmond v. Caldwell, 15 Me. 340; Tobey v. Barber, 5 Johns. 68.
3 Phillips v. Blake, 1 Met. 156; Snow v. Perry, 9 Pick. 539.
4 Barnard v. Graves, 16 Pick. 41; Bradford v. Fox, 7 Tr. App. 254, 38 N. Y. 289; Hill v. Beebe, 13 N. Y. 566.
5 Cromwell v. Lovett, 1 Hall, 56; The People v. Howell, 4 Johns. 296; Pearce v. Davis, 1 Mood. & Rob. 365; Puckford v. Maxwell, 6 T. R. 52; Everett v. Collins, 2 Camp. 515. A creditor who takes from his debtor's agent on account of the debt the check of the agent, is bound to present it for payment within a reasonable time; and if he fails to do so, and by his delay alters for the worse the position of the debtor, the debtor is discharged, although he was not a party to the check. Hopkins v. Ware, Law R. 4 Exch. 268 (1869).