Lang v. Shaw

65 S.E. 789, 6 Ga. App. 747, 1909 Ga. App. LEXIS 443

• Court: Court of Appeals of Georgia
• Decided: October 5, 1909
• Status: Published

Opinion

Powell, J.

While ordinarily notes, checks, due-bills, and other similar instruments given to evidence an indebtedness are not payment until they themselves are paid, yet the contract between the parties may make them so. Where a creditor holding an indebtedness against a single debtor takes the joint due-hill of this debtor and a third person, with a recital therein that it is in' settlement of the account out of which the indebtedness arose, the creditor can not thereafter sue the original debtor upon the account. The taking of the due-bill under such circumstances amounts to a novation; and if both the joint makers are alive and within the jurisdiction of the court, they are subject to suit only in a joint action upon the due-bill. Judgment reversed.