1 N.H. 281 | Superior Court of New Hampshire | 1818
The opinion of the court was delivered by
It seems to be well settled that if a creditor agrees to accept the promissory note of his debtor, or of a third person, in satisfaction of a simple contract debt, the debt is extinguished
In some cases the note of a third person, received by a creditor, becomes by his negligence a satisfaction of the debt, without any special agreement; as. when he neglects to use due diligence to obtain it of the maker, and the maker fails
-w p v\ ~i _ _ If a person sells goods and pays money, and at the same time receives therefor the note of a third person payable to himself, or any note or bill not having the name of the person with whom he deals, upon it, it will be presumed to be a sale*of the note, and to be in satisfaction, until the contrary appears
Thus, it is apprehended, stands the common law on this subject.
The supreme court of Massachusetts have, however, decided that a negotiable note is always to be presumed to have been received in satisfaction, until the contrary appears
The plaintiff accepted the note of Dakin for the amount of this demand, by which the defendants were induced to leave in the hands of Dakin sufficient to pay the note. Da-kin has become insolvent; and if the plaintiff can prevail in this action the defendants will in effect be compelled, not on account .of any fault or neglect on their part, but by the act of the plaintiff, to pay the debt twice. This would be most manifestly unjust, and. there must be
Judgment on the verdict.
) 1 Salk. 124, Clark vs. Mundell.-2 Shower 303, Vernon vs. Boverie.-5. D. & E. 510, Kearslake vs. Morgan.-6 Cranch 253, Sheehy vs. Mandeville.-7 Mass. R. 285, Wiseman & al. vs. Lyman.-11 Johnson 409, Whitbeck vs. Van. Ness. Andrews 187, 228, Smith vs. Wilson.
6 Johnson 110, Wilson vs. Force.
2 Johnson 455, Murkle vs. Hatfield.
6 D. & E. 52, Puckford vs. Maxwell.-1 Espin. Cases 5. Stedman vs. Gooch.-7 D. & E. 64, Owenson vs. Morse.
) 1 Espin. Cases 245, Wilson vs. Kennedy.—1 East 58, in notes.
Chitty on Bills 119.
2 Wilson 353, Chamberlyn vs. Delarive.
3 Cranch 311, Harris vs. Johnson.-1 Johnson 33, Holmes vs. D’Camp.-1 Cranch 181. Clark vs. Young.
3 East 147, Wyatt vs. The Marquis of Hertford.
Espin. Cases, 122, Reed vs. White & al.-7 Johnson 311, Schemerhorn vs. Loines & al.
4 Espin. Cases 91, Evans vs. Drummond.
1 Gallison 417, Swift vs. Hathaway & al.-3 D. & E. 180.
15 East 11.-11 Johnson 409, Whitberk vs. Van Ness.-1 Lord Raymond 442.-12 Mod. 241. 408, 203, 517.-3 Johnson’s Cases 72.-5 Johnson 68.-1 Salkeld 124.-6 Mod. 36.
Chitty on Bills 109.-2 John. 33, Holmes vs, D’Camp.-8 D. & E. 451, Tapley vs. Martins.
5 Mass. R. 302, Thatcher & al. vs. Dinsmore.-10. Mass. R. 47, Chapman vs. Durant & al.-6 Mass. R. 143, Mancely vs. M'Gee & al.