Witherby v. Mann

11 Johns. 518

• Court: New York Supreme Court
• Decided: October 15, 1814
• Status: Published

Opinion

Yates, J.

delivered the opinion of the court. The questions js whether the note given for the payment of 52 dollars and If cents, is such an extinguishment of the debt due on the judgment, for the last instalment, as to authorize this action either on the special agreement or the money counts.

The mere giving a bond for the debt of another is no payment; and an action for money paid, laid out, and expended for the use of the person for whose debt the obligation is given, will not lie. The money must actually be advanced, to sustain the action. (Cummings v. Hackley, 8 Johns. Rep. 202.) But this principle has not been extended to all kinds of securities thus given. There are cases in which negotiable paper has been held equivalent to the payment of money, to which it is in some measure analogous, as when the note has been negotiated, and is in the hands of an innocent endorsee. He, of course, would be protected : and, unless it was considered as a payment of the original debt, the drawer might be made to pay twice. So when the note has been accepted and paid in satisfaction of the debt. The note, in this case, has not been negotiated, but has been accepted and received by the party in whose favour the judgment was obtained, in satisfaction of the debt, which is sufficient to authorize . this recovery. The decisions cited against this, apply only to cases where the note or bill has not been accepted in satisfaction for the debt.

In Drake v. Mitchell, (3 East, 251.) the distinction is stated. There one of three joint covenantors gave a bill of exchange for part of a debt secured by the covenant, on which bill judgment was recovered; the court said that such judgment was no bar to the action against the three; because, the bill does not appear to have been received in satisfaction of the debt.

In Toby v. Barber, (5 Johns. Rep. 68.) this court decided, that a note is not a payment of a precedent debt, unless there is an express agreement to accept it in payment; and the same principle is laid down in Johnson v. Weed and another, (9 Johns. Rep. 310.)

The conclusive evidence in this case, as to the acceptance of the note by the holder of the judgment,, entitles the plaintiff to .retain this verdict. It was not necessary that satisfaction of the Jedigmeni should be entered to consummate his right to recover. The note having been given and accepted in extinguish-meat of the debt, is sufficient for the purposes of this action. The defendant has received the full benefit; the debt has been satisfied; and, as to him, it is the same as if so much money had been paid for him. It was proper evidence to support the count in the declaration, for so much money paid, laid out, and expended, and which the plaintiff ought to recover. The verdict must, therefore, stand, and the plaintiff is entitled to judgment.

Judgment for the plaintiff”