Cumming & Cumming v. Hackley & Fisher

8 Johns. 202 | N.Y. Sup. Ct. | 1811

Per Curiam.

The plaintiffs sue in an action of assumpsit for money paid for the defendants, and the ques-1 _ J \ \ tion is, whether .giving a bond in discharge of the liabi2jty of the plaintiffs, as endorsors of two negotiable notes drawn by the defendants, is to be considered as a payment of money.

As between the parties to the bond, it may be sufficient to discharge the simple contract debt, because it is changing the security to one of a higher nature. (6 Johns. Rep. 90. 2 Johns. Cas. 198. 5 Tyng’s Rep. 26.) But is such a change of security the actual payment of money under this count ? In Taylor v. Higgins, (3 East, 169.) the court of king’s bench held it not to be equivalent to the payment of money, and not sufficient to entitle the party to recover under such a count. It seenis to be a rule that under a count for money paid, it must appear that money was actually advanced. (Spurrier v. Elderton, 5 Esp. N. P. 1.) An obligation to pay is not the same thing as the actual payment, A bond has no analogy to cash. There are some cases in which the giving negotiable paper has been held equivalent to the payment of money, (2 Esp. N. P. 571. 5 Tyng’s Rep. 299.) and there may be some reason for this distinction; for otherwise a party may be obliged to pay a debt twice, if the paper should pass into the hands of an innocent endorsee. But the case in East is directly in point, that the giving a bond is no payment.

The technical rule operates with perfect justice in this case; for the bond has not been and never will be paid, as the plaintiffs have since been discharged under the insol- . vent act; and if the money now demanded was to be recovered, their estate would receive it, without ever having given an equivalent.

The motion, on the part of the plaintiffs, to set aside the verdict, must therefore be denied.

Rule denied.