
    James Maneely versus Thomas M’Gee, Robert M'Conville, John Smith, and Thomas Cassady.
    When a negotiable note is given for a subsisting debt by simple contact, the presumption of law is, that it was received in payment of such debt; but this presumption may be controlled by the agreement of the parties.
    Assumpsit for work and labor done b} the plaintiff for the defendants, from March 26th to December 9th, 1807, at an agreed price. M’ Convitte was defaulted, and the other defendants pleaded the general issue, which was tried, at the last November term in ibis county, before the chief justice. On the trial, a verdict was found for the plaintiff, for 119 dollars 88 cents, by consent of the parties, subject to the opinion of the Court upon a case stated.
    From the facts in the case, it appears that the plaintiff [ * 144 ] did the labor for the defendants, for which the action * is brought; that the defendants had constituted M’Con-mile their receiver and paymaster; that on the 22d of October, 1807, the plaintiff and M’ Conville made a settlement for the labor then performed, and after deducting the advances made to the plaintiff, there was found due to him 108 dollars 33 cents, for which sum M’ Conville then gave the plaintiff his, the said M’ Conville’s, promissory note payable to the plaintiff or his order with interest, which the plaintiff, during the trial of this cause at the court below filed in the case; that the plaintiff continued to labor for the defendants until December 9th, when M’ Conville gave him a certificate, that there was due from the defendants to him the sum of 119 dollars 88 cents, which sum M’ Conville, in behalf of the defendants, promised that they should pay him on demand with interest; that this last-mentioned sum included the sum for which the note was given ; that none of the defendants, except M’’ Conville, were present at or privy to the adjustment, signing the note, or giving the certificate ; that afterwards, in the same December, the defendants were all together, making an account of the bills .against them ; that the plaintiff’s bill was included in the said account; that it was the understanding of all the defendants, that each one was liable to the payment of one fourth part of the said account; but that the plaintiff was not present, nor privy to this transaction.
    If, on these facts, the defendants were liable in law to pay to the plaintiff the sum for which the said promissory note was given, it was agreed that the verdict should stand ; but if the defendants, except M’Conville, were discharged from paying that sum, by the plaintiff’s receiving said note from ISP Conville, then the verdict was to be amended, by deducting from the sum therein found the sum for which the note was given, and judgment in either case to be rendered accordingly.
    At the adjournment in July last, Paine, for the defendants, contended that the promissory note given by M’ Conville [ * 145 ] * in October, was payment of the precedent debt, because, 1. The plaintiff so received and considered it. 2. If the plaintiff did not at the time so receive and consider it, yet it m ist be now so applied, because he has used no diligence to collect it from the maker. 
    
    
      If M’Conville had a legal authority to give the note, so as to bind the other defendants, the plaintiff may still endorse the note to a third person, or may recover it himself against them; if he had no such authority, he must be considered as a stranger, and the plaintiff, accepting his note in payment, is bound.
    Whitman, for the plaintiff,
    acknowledged the note to be prima facie evidence of payment, but, like all other evidence of that kind, it was liable to be disproved. It shifts the burden of proof upon the other party. The same thing happens when a receipt in full has been given by mistake. The whole course of the facts in this case shows that it was not the understanding of either of the parties to the note, that it was payment of the debt. The whole is, however, a question of fact, and the jury have found the facts necessary to give the plaintiff his judgment; unless the Court shall say that in every possible case a negotiable note, given in consideration of an existing simple contract, is payment and a discharge of such contract.
    At this term the opinion of the Court was delivered by
    
      
      
        Clark vs. Young & Co., 1 Crunch, 181. — Richardson vs. Rickman, cited in 5 D & E. 517. — Louviere vs. Laubray, 10 Mod. 36. — Chamberlyn vs. Delarive, 2 Wils. 353
    
   Parsons, C. J.

At common law, a promissory note given by a debtor to pay to his creditor a subsisting debt, is no discharge of the debt; but the creditor may either have his remedy on the note, or may recover the debt. But in this state, this rule is confined to notes not negotiable. And it has long been settled, that when a debtor shall give to his creditor his negotiable note for a debt due on simple contract, the legal presumption is, that the note was received in payment. , And this presumption arises from the consideration, that the creditor may endorse the note ; and if he could compel payment of the original debt, the debtor might afterwards be obliged to * pay the note to the endorsee, [ * 146 J and thus be twice charged, without any remedy at law.

And there is no inconvenience to the creditor ; for if he hold the note, he may sue the debtor upon it, and recover his debt.

But this presumption, like all others, may be controlled by the agreement of the parties. And in this case, if it appears that M Conville’s note was not understood by the parties as received in payment, or if this be not within the reason of the exception to the general rule, the verdict ought to stand. Now, the note did not oblige any but the maker. He was authorized by the defendants to pay for them, but not to bind them by his promissory notes. M’ Conville and the plaintiff made a further settlement, in which the labor, for which the note was given, was made an item, and considered by the parties as still unpaid for. And all the defendants afterwards considered themselves as holden to pay for this labor.

It is said that at this time they had no knowledge of M: Conville’s note. But if they had, they were not obliged to pay it, or to pay M’ Conville the amount of it, for he, being one of the defendants, was present, and made no claim for his note, or as having paid any thing on their account to the plaintiff; and by his certificate, he admitted that the labor was not paid for.

From these facts, it is manifest that the reason of the presumption, that the note was taken as absolute payment, does not exist; because in no event were the defendants obliged to pay twice the amount of the plaintiff’s demand. And M’ Conville, who made the note, confesses this action by his default. The presumption that his note was a payment, is also controlled by his certificate, that the labor, for which his note was given, remained unpaid for.

Let judgment be entered on the verdict. 
      
       Vide 5 Mass. Rep., Thatcher & Al. vs. Dinsmore.
      
     
      
       [There appears to be no good reason for establishing such a rule in this state, especially when no such rule exists elsewhere, and when it clashes with other well-settled rules, which we have adopted. See note to Thatcher vs. Dinsmore, 5 Mass. Rep.— Commercial Bank vs. Cunningham & Al., S. J. C. Middx., 1837.— Van Cleef vs. Therasson, 3 Pick. 12. — Canfield vs. Les, 18 Pick. 253. — Watkins vs. Hill, 8 Pick 522. — James vs. Kennedy, 11 Pick 131. — Reed vs. Upton, 10 Pick. 525. — Ed.]
     