wards sent the vendor the note of one P, and the vendor laid it away, remarking that he did not know P. At the maturity of the note P was in solvent, and the purchaser was held liable for the price of the horse. Torry v. Hadley, 27 Barb. (N. Y.) 192.

A note given in another State for goods sold there must be governed by the law of that State as to whether or not it constitutes a payment. Pecker v. Kennison, 46 N. H. 488.

1. Stubbins v. Mitchell, 82 Ky. 536. 2. Schouler's Exec. & Adm., § 441; Taylor v. Perry, 48 Ala. 240.

3.Huse v. McDaniel, 33 Iowa 406.

A debtor offered to the creditor a certificate of deposit issued to and indorsed by the foreman. The creditor declined to receive it, through want of confidence in the bank, until the debtor declared himself to be good for it, and promised to pay it in case the bank did not. The next day the bank failed, and the creditor deposited the certificate in court in a suit on the original debt. Held, that the certificate was not taken in payment, and the above facts constituted no defense. Leake v. Brown, 43 Ill. 372.

An agreement for a loan having been made, the lender offered, and the borrower received, instead of cash, but without any express agreement as to whose should be the risk, a certificate of deposit, post-dated. Before maturity of the certificate, the bank by which it was issued failed. Held, that the fair inference, from all the attendant circumstances, was that the borrower received the certificate, not as payment, but as a collateral means of obtaining the cash in the mode most convenient to the lender; and

that the lender should bear the loss. This was so held, notwithstanding the fact that the lender, after transferring the certificate, settled his account with the bank, giving the bank credit for the amount of the certificate; and the further fact that complainant made an attempt to get the certificate cashed before its maturity. Burrows v. Bangs, 34 Mich. 304.

Where the creditor accepts certificates of indebtedness in place of cash, in payment of a claim against the government, he cannot afterwards recover the difference in value between the certificates and money. Gibbons v. United States, 2 Ct. of Cl. 421.

4. Haines v. Pearce, 41 Md. 221; McNeil v. McCamly, 6 Tex. 163; Rogers v. Shelburne, 42 Vt. 550. Compare Farwell v. Salpaugh, 32 Iowa 582.

An order for money constitutes a payment if accepted as such in the absence of fraud. Harrison v. Hicks, I Port. (Ala.) 423; s. c., 27 Am. Dec. 638.

Where the debtor gave the creditor an order on a third party which was to be considered a payment in case the order was accepted, and the party on whom it was drawn refused acceptance, the debt was not extinguished, even though the debtor was not notified of the non-acceptance of the order. Geiser v. Kershner, 4 Gill & J. (Md.) 305; s. c., 23 Am. Dec. 566. See also Briggs v. Parsons, 39 Mich. 400.

In Vermont the delivery by the debtor and acceptance by the creditor of a town order operates as a satisfaction of the debt, and the remedy is only on the order. Dalrymple v. Whitingham, 26 Vt. 345.

So in Maine unless the order was

utterly worthless through want of authority. Hussey v. Sibley, 66 Me. 192; s. c., 22 Am. Rep. 557.

If a city warrant is to operate as an extinguishment of a judgment debt only when paid, the creditor must return it, or offer to return it, before he can proceed by execution. New Orleans v. Smith, 24 La. Ann. 405.

But the party receiving the order may by his actions preclude himself from recovering on the original debt. Sherwin v. Colburn, 25 Vt. 613.

Where a party rendering services agreed to accept in part payment an order on a third party, who accepted the order and was in good credit at the time, but subsequently failed, this constituted a payment for the services. Besley v. Dumas, 6 Ill. App. 291.

An agreement to take it in payment may be inferred from the circumstances. Haines v. Pearce, 41 Md. 221; Carpenter v. Murpheree, 49 Ala. 84; Knox v. Gerhauser, 3 Mont. 267.

As to agent's authority to receive note or cheque in payment, see infra, "To Whom Payment is going

to be Made."

Where the owner of a building at the request of the original contractor, and before any one has attempted to create a mechanic's lien, assumes a legal obligation to pay sub-contractors or material-mén for labor or material, used in the erection of the building, as by accepting orders drawn on him by the contractor in favor of such parties, this constitutes a valid payment upon the contract to the extent of the obligation assumed. Garrison v. Mooney, 9 Daly (N. Y.) 218; Gibson v. Lenane, 94 N. Y. 183.

An order payable at sight drawn by the duly authorized agent of an insurance company upon its secretary for a loss under a policy issued by the company, and received by the assured in full satisfaction thereof, will operate as a payment even before its presentation to the secretary. Spooner v. Rowland, 4 Allen (Mass.) 485.

See also as to the effect of an order as payment, Alabama etc. R. Co. v. Sanford, 36 Ala. 703; McWilliams v. Phillips, 71 Ala. 80; Burgen v. Dwinal, 11 Ark. 314; Preston v. Jones, 3 Ill. App. 632; Porter v. Walker, 1 Iowa 456; Palmeteer v. Gatewood, 4 J. J.

Marsh. (Ky.) 503; Chapman v. Coffin, 14 Gray (Mass.) 454; Waite v. Vose, 62 Me. 184; Olson v. Cremer, 43 Minn. 232; Rice v. Dudley, 34 Mo. App. 383; Lupton v. Freeman (Mich. 1890), 46 N. W. Rep. 1042; Knox v. Gerhauser, 3 Mont. 267; Hoar v. Clute, 15 Johns. (N. Y.) 224; Missen v. Tucker, I Jones (N. Car.) 176; Commercial Bank v. Bobo, 9 Rich. (S. Car.) 31; Graves v. Allen, 66 Tex. 589; Goodrich v. Barney, 2 Vt. 422; Finney v. Edwards, 75 Va. 44; Schierl v. Baumel, 75 Wis. 69.

1. 2 Greenl. Evid. (―ed.), § 519; Lee v. Green, 83 Ala. 491; Gardner v. Hust, 2 Rich. (S. Car.) 608; Chalmers v. Turnipseed, 21 S. Car. 126; Howell v. Webb, 2 Ark. 360; Rowe v. Collier, 25 Tex. Supp. 252. Compare Stamper 7. Johnson, 3 Tex. 1; Cumming v. Hackley, 8 Johns. (N. Y.) 202; Bailey v. Wright, 3 McCord. (S. Car.) 484.

Where the bond of a third person is received in part payment of a preceding debt, it constitutes payment though the obligor was insolvent at the time. Muir v. Geiger, 1 Cranch (C. C.) 323.

It is held in Dakota that the giving of a security, either by mortgage or trust deed, is not payment of an antecedent debt evidenced by note. Star Wagon Co. v. Matthiessen, 3 Dak. 233.

The same is held by the Michigan courts. Brown v. Dunckel, 46 Mich. 29. As to view of South Carolina courts on this point, see Chewning v. Proctor, 2 McCord Eq. (S. Car.) 11. Of courts of New York, Coonley v. Coonley, Hill & D. Supp. (N. Y.) 312.

And of Massachusetts, Dodge v. Emerson, 131 Mass. 467.

A note under seal given for an account extinguishes the account. Mills v. Starr, 2 Baily (S. Car.) 359; Robertson v. Branch, 3 Sneed (Tenn.) 506.

The sealed note of two partners ex-, tinguishes a note of the firm for which it is given. Chalmers v. Turnipseed, 21 S. Car. 126.

To same effect Averill v. Loucks, 6 Barb. (N. Y.) 19.

But the receipt of an obligation of equal dignity does not extinguish the debt. Bowers v. State, 7 Har. & J. (Md.) 32; Clopper v. Union Bank, 7 Har. & J. (Md.) 92; s. c., 16 Am. Dec. 294; Hart v. Boller, 15 S. & R. (Pa.) 162 ; s. C.,

16 Am. Dec. 536; Bailey v. Wright, 3 McCord (S. Car.) 484.

A security is not extinguished merely by the creditor's in acceptance of a new one from other parties, for the same debt. Potter v. McCoy, 26 Pa. St. 458; Covington v. Clark, 5 J. J. Marsh. (Ky.) 59. See also Hamilton v. Callender, i Dall. (U. S.) 420.

Where insurance policies are lodged with the creditor as collateral security, they do not operate as a payment until the money is actually received upon them, though under a submission to arbitration an award has been made that a certain sum is due on them. Scott v. Lifford, 9 East 347; 1 Camp. 346.

Where a note is given for public securities, payments thereon made in public securities are to be applied according to their value at the time the payments are made. Thatcher Prentiss, 2 Root (Conn.) 20.

υ.

1. Butman v. Howell, 144 Mass. 66; Tinsley v. Ryon, 9 Tex. 405.

When a sale is for cash, and securities which are void or prove to be void, are taken in payment, the creditor may sue and recover on the original cause of action. School Town of Monticello v. Grant, 104 Ind. 168.

It was agreed between the vendor and vendee of land that the cotton grown thereon should be forwarded to the vendor to be by him sold and the proceeds applied to the payment of the purchase money. Held, that as fast as any moneys arising from the sale of the cotton came into the hands of the vendor, the indebtedness was pro tanto reduced, and as to that part could only be revived with the consent of the vendee. Williams v. Whiting, 92 N. Car. 683.

Where the debt is to be paid in specific articles, it may be discharged by the payment of money. Sessions v. Ainsworth, 1 Root (Conn.) 181; Jones v. Dimmock, 2 Mich. N. P. 87.

And, ordinarily, the debtor has the election either to pay the price or deliver the articles. Čleveland etc. R. Co. v. Kelley, 5 Ohio St. 180.

But it seems the election must be exercised by the debtor at or before maturity of the debt; after that, the credit

yment of

or's right to demand money is absolute. Church v. Feterow, 2 P. & W. (Pa.) 301.

Where notes were payable in grain, to be delivered at the maker's mill at maturity at a fixed price, and the maker set apart a sufficient quantity of grain to meet the notes, the property in the grain was charged and the notes were paid. Zinn v. Rowley, 4 Pa. St. 169.

2. Ralston v. Wood, 15 Ill. 159; s. c., 58 Am. Dec. 604; Smith v. Hobleman, 12 Neb. 502; Smith v. Whitfield, 67 Tex. 124; Phillips v. Afalo, 4 Man. & G. 846; 12 L. J., C. P. 49; Breton v. Cope, Peake, 31.

"Originally payment was the performance of a promise to pay money at the time and in the manner required by the terms of the contract. But it has been extended to include the delivery of money in satisfaction of a debt after a default has been made in payment according to the terms of the contract. If wood is delivered and received as a payment of money due on a note, it is only by virtue of a subsequent and independent agreement to that effect, and there is an accord and satisfaction. And the agreement by which the acceptance of the wood operates as a satisfaction of the contract, and the delivery and receipt of the wood under this agreement, are substantive facts which should be set forth in the answer." Ulsch v. Muller, 143 Mass. 379.

If a bank discounts a bill of exchange for the drawer an acceptance of a conveyance of property from the drawer in discharge of his liability while the paper is still the property of the bank, constitutes a payment of the bill. Williams v. Jones, 77 Ala. 294.

If a judgment creditor agrees to accept a specific article in satisfaction of the judgment, and the article is delivered to him and accepted, the judgment is thereby extinguished. Brown 2. Feeter, 7 Wend. (N. Y.) 301. See Fowler v. Moller, 10 Bosw. (N. Y.) 374.

The maker of a past due note delivered to the holder thereof a quantity of corn to be shipped to Galveston. The

holder shipped a part of the corn but the rest rotted in the pens, though there were then frequent opportunities for shipping to Galveston. Held, that a finding of the jury that the corn was a payment on the note to the extent of its market value at the time would not be disturbed. Copes v. Perkins, 6 Tex. 150.

Where the debtor delivered to the creditor a mare to sell and apply the proceeds to the payment of the debt, and the creditor exchanged the mare for other property, this constituted a payment of the debt, notwithstanding a dispute as to the amount to be applied. Strong v. Kennedy, 40 Mich. 327.

Where there was a written agreement to pay $572, when a certain note was paid, a delivery of personal property and acceptance thereof in satisfaction of the note, accompanied by a surrender and cancellation of the note, is such a payment as makes the $572 pay-. able. Bacon v. Lamb, 4 Colo. 578.

Where the debtor places property in the hands of the creditor it is not to be considered as payment in full, unless such appears to be the intention of the parties. Perit v. Pittfield, 5 Rawle (Pa.) 166. Compare Kelly v. Kelly, 6 Rand. (Va.) 176; s. c., 18 Am. Dec.

710.

delivery, and sell them, and out of the proceeds to retain the amount of his debt, the creditor thereby acquired a lien, as against the administrator of the debtor, to the extent of his claim. Gurnell v. Gardner, 4 Giff. 626; 9 L. T., N. S. 367; 12 W. R. 67.

1. Dudley v. Vose, 114 Mass. 34.

Where a note is to be paid in specific articles at "factory prices," this is construed to mean the prices at which such goods are sold at factories, unless it is shown that there is a different technical sense universally established by the custom of trade. Whipple v. Levett, 2 Mason (U. S.) 89.

2. Beaumont v. Greathead, 2 C. B. 454; 3 D. & L. 631; 15 L. J., C. P. 130; Moran v. Abbey, 63 Cal. 56.

In the absence of proof to the contrary, it will be presumed that payment was made by the party bound, and not by another. Ames v. Merchants' Ins. Co., 2 La. Ann. 594.

3. McGee v. San Jose, 68 Cal. 91.

The payment of a debt by a person not legally liable for it is a satisfaction of the debt, if so received by the creditor, Martin v. Quinn, 37° Cal. 55; Burr v. Smith, 21 Barb. (N. Y.) 262; Welby v. Drake, 1 Car. & P. 557.

Ill. 427.

Where a debt is payable in lumber, lime and rock, the quantities, time and place to be fixed by the payee, an unqualified refusal by the payor to deliver any lumber thereon avoids the necessity of any formal demand by the creditor fixing quantity, time or place. Ritchie v. Huntington, 7 Kan. 249.

Where a debtor gave his creditor authority to take certain goods passing by

the creditor to accept the payment in that property. State v. Pilsbury, 29 La. Ann. 787.

A voluntary payment by a stranger cannot be set up as a defense to an action by the original creditor. Lucas 7. Wilkinson, 1 H. & N. 420; Kemp v. Balls, 10 Exch. 607; 24 L. J. Exch. 47; Muller v. Eno, 14 N. Y. 605.

a

Payment by a stranger for debtor and on his account, and after wards ratified by him, is a good payment. Belshaer v. Bush, 11 C.B. 191; 22 L. T., C. P. 24.

But payment by a stranger without the authority, prior or subsequent, of the debtor, is not. James v. Broadhurst, 9 C. B. 173; James v. Isaacs, 12 C. B. 791; 2 L. J., C. P. 73; Cook v. Lister, 13 C. B., N. S. 543; Goodwin v. Cremer, 18 Q. B. 757.

And such ratification will be good, though not made until after the commencement of an action, as by plea of payment. Belshaer v. Bush, 11 C. B. 191; 22 L. J., C. P. 24; Simpson v. Egginton, 10 Exch. 845.

But if the creditor, before any ratification by the debtor, cancels the payment by returning the money to the stranger, the debtor cannot afterwards ratify the payment. Walter v. James, 6 L. R. Exch. 124; 24 L. T., N. Š. 188; 40 L. J. Exch. 104; 19 W. R. 472.

Where, after a note has become due, a stranger calls upon the holder and pays the amount, declines to have it canceled and takes it away with him, nothing being said about buying it, this will be held a payment and satistaction of the note, so as to prevent a suit being brought thereon by a person receiving it from the stranger. Burr v. Smith, 21 Barb. (N. Y.) 262.

Though a bank is not liable in notes and certificates illegally issued by it, yet if at its request a third party who is indebted to it takes up such notes and certificates in payment of his indebtedness to the bank, such fact constitutes a payment of the third party's debt. Leavitt v. Beers, Hill & D. Supp. (N. Y.) 221.

A voluntary payment by a stranger of another's debt gives the payor no

right of action against the debtor in his own name. Brown v. Chesterville, 63 Me. 241; Wilkes v. Harper, 1 N. Y. 586.

Where A delivers to B, who is a creditor of C, certain chattels which B accepts in satisfaction of C's indebtedness to him, C not being a party to the transaction, this satisfies both the debt of C to B and any liability of B to A for the price of the chattels; and A, after delivering the goods and inducing B to accept them in payment, is estopped from alleging the contract to be within the Statute of Frauds, upon the ground that the agreement was a parol promise to pay the debt of another. Fowler v. Moller, 10 Bosw.

(N. Y.) 374.

1. 2 Benj. on Sales (4 Am. ed.) 952; Artley v. Morrison, 73 Iowa 132; Robinson v. Weeks, 6 How. Pr. (N. Y.) 161; Wilson v. Rogers, 1 Wyoming Ter. 51.

Where a note and mortgage are executed to a trustee, and the same are left in his possession, payment of interest to the trustee will bind the . beneficiary. Thomassen v. Van Wyngoorden, 65 Iowa 687.

Where the obligor pays to the obligee the amount of a bond which has been assigned, without notice thereof to the obligor, the bond is discharged. Preston v. Grayson Co., 30 Gratt. (Va.) 496.

Payments made to a de facto administrator are valid. Chicago etc. R. Co. v. Gould, 64 Iowa 343.

A payment made to a guardian authorized to receive payment is valid. Wuesthoff v. Germania L. Ins. Co., 107 N. Y. 580.

Where the widow was sole legatee for life, and the estate was not in debt, and no administration pending, a payment to the widow is good. Hannah v. Lankford, 43 Ala. 163.

Payment made by an administrator to the husband of a distributee, without her knowledge and consent, is no more than unauthorized payment to a stranger, unless it can be traced to her hands or to her use. Jones v. Commercial Bank, 78 Ky. 413.

If payment is made to a stranger to