
    McNeil and another v. McCamley.
    An order by a debtor on a third person, which is neither paid nor accepted, is not an extinguishment of the precedent indebtedness.
    Appeal from Colorado. This suit was brought by the appellee against the appellants upon a promissory note made by them in favor of J. Ó. McQonigal, and by him transferred to the plaintiff. The note bore date June 30,1848, and was for the payment of six hundred dollars on the 25th day of December thereafter.
    The defense relied on was payment. To establish this defense the defendants introduced the payee'of filie note, McQonigal, who testified that lie liad received a draft from the defendant McNeil, drawn on Messrs. Powell & Brigham, of Matagorda; that it was not received as a payment on the note, but that it was understood that if payed Ihe amount should be credited on tlie note, hut not otherwise; that lie presented the draft to Powell & Brigham, who refused to accept or pay it, saying that McNeil had no funds in their hands; and that he informed McNeil of the non-payment of .the draft. The witness stated that he liad been at all times ready to return the draft, and did then produce it and return it to the defendants’ counsel.
    The draft was not expressly made a part of tlie statement of facts, but it was copied into tlie record, and contained a request to the drawees to pay its contents and credit the amount, $200, on a note held by the plaintiff McCam-ley, of tlie description of that sued on. Across the face of tlie draft were written the words ‘’Payable when in funds, ’’but without signature, or anything to siiow by whom or when placed there. The court held in effect that this paper was not evidence of payment. There was judgment for the plaintiff for tlie amount of ihe note, less $130, admitted to have been paid by the defendant McNeil. And the defendants appealed.
    
      R. Robson, for appellants.
    McNeil gave his note to McQonigal, and in part payment of the same drew a draft on a house in Matagorda. Said house accepted the same when in funds. The holder of a bill lias a right to take a conditional acceptance. But if he does, lie is bound by tlie same. (See Story-on Bills.) The court has no right to presume from ihe record that tlie drawee had no funds, and was not responsible for the payment of tlie draft. From ail that appears tlie drawee of tlie bill lias paid tlie debt.
    
      J. B. Jonas, for appellee.
    The appellants having abandoned all tlie errors assigned, except the third, and there appearing nothing in the statement of facts or any other part of the record to support that assignment, the appellee deems it unnecessary to submit any argument or to cite any authorities. The draft referred to in argument nowhere appears in the record. The only evidence in relation to it (MeGonignl’s) shows that it was not taken in payment; that it was never accepted or paid; and that the drawee had no funds in tlie hands of tlie persons upon whom it was drawn.
   Wheeler. J.

It is evident, as well from the terms of the order as from the testimony of tlie witness, that- it was not given or received as a payment upon tlie note. It in terms recognizes McCamley as the holder of the note, and requests the drawees to pay it and credit the amount on tlie note. The payment of the order was, therefore, by its terms, to be precedent to the contemplated credit upon the note. It was neither paid nor accepted, and nothing can be more perfectly clear than that the giving of it was not a payment, nor was the order evidence of payment.

.An.order on a third party for the payment of money which has not been paid or accepted by the drawee is not a payment or extinguishment of a precedent debt. (15 Johns. R., 224.)

We are of opinion that there is no error in the judgment, and that it be affirmed.

Judgment" affirmed.  