
    [Philadelphia,
    January 10, 1827.]
    HART against BOLLER.
    
      m error.
    The general rule is, that if a person indebted to another on a note gives him a new note for the same sum, wilhout-new consideration, it shall not be .deemed a satisfaction of the first, unless so accepted: but whether so accepted, is matter of fact for the jury, and it is error for the court to take the.question from the jury, and decide it as matter of law.
    Error to the District Court for the city and county of Philadelphia,
    
    This action was brought by Jacob Boiler, the plaintiff below and defendant in error, against Joseph Hart, the plaintiff in error. The plaintiff declared in his first count, on a promissory note drawn by Charles Miller, payable to the defendant or his order, and indorsed by the defendant to the plaintiff, who discounted it. This note was , Red October 11 ih, 1819, for two hundred and forty dollars, at sixty days. It fell due the 18th of December, 1819, and was protested for non-payment, and notice whereof was given to the defendant, the indorser. The second count was on a note for the same sum, drawn and indorsed by the same parties, dated the 14th of December, 1819, due February 15th, 1820. it was not paid, neither was it protested, or'notice of nonpayment given to the defendant. On the trial of the cause, it became a question whether the seeond note was in satisfaction of the first. The President charged the jury,that this was matter of law, that the second nóte was not a satisfaction or discharge of the - first, and therefore the plaintiff was entitled to their verdict on the first count.” To this charge the counsel for the defendant excepted.
    
      Miller and Lowber, for the plaintiff in error,
    cited Chilly on Bills, 371. Smith v. Becket, 13 East, 187. Brown v. Maffey, 15 East, 216. Slaymaker v. Gundacker, 13 Serg. & Rawle, 75.
    
      Keemle, contra,
    referred to 9 Serg. & Rawle, 127. 11 Serg. & Rawle, 182. 5 Mass. Rep. 170.
   The opinion of .the court was delivered hy>

Tikghman, C. J.

It is a general rule, that if one indebted to another by note, gives another note to the same person for the same sum, without any new consideration, the second note shall not be deemed a satisfaction of the first, unless so intended, and accepted by the credifor. But if so accepted, it is a satisfaction. The quo animo it was accepted is matter of fact, which the cour|t cannot take to itself, and exclude the jury from the decision of it. The intent may often be deduced from circumstances, though nothing positive was expressed. We are of opinion, therefore, that the District Court erred in assuming, the determination of this point, as matter of law. It should'have been submitted to the consideration of the jury, whether the second note was accepted in satisfaction. The judgment is to be reversed, and a venire de novo awarded.

Judgment reversed, and a venire facias de novo awarded.  