
    Hardin against Kretsinger.
    to be performed tendered 408 by him .amount. Where A. covenanted lo convey to B,, by a good warrantee deed, a lot of land, and B. covenanted to pay A. 400 dollars in money and 150 dollars in obligations, onthe execution and delivery of the deed, these are dependent covenants, and dollars in money, and two promissory notes executed by third persons payable to him or bearer, and not endorsed to 1.50 dollars } which A, took up and kept, throwing down, at the same time, a deed to B.? afterwards re«wed- /⅛⅝ performance of the™la“a"fi ⅞" fethTpiy-of 150 which he refused to accept, but which he dollars ⅛ obli_ gat¡ons; and that nojes a. on the origi-atPS"own risk as t0 lhe makers; there SfénFrepresent" ations or eon-cealment on the part of B, j though, if there had been any fraud, in this respect, the plaintiff could not have availed himself of it, in an action of covenant for the non-delivery of the obligations.
    Where the form of action, or pleadings, gives the party notice to be prepared to produce a writing or .instrument, if necessary, no other notice to produce it is requisite.
    THIS was an action of covenant. By an agreement under the hands and seals of the parties, dated September 20, 1817, the plaintiff covenanted to sell and convey to the defendant, by a good and sufficient warrantee deed, &c., a certain lot of land ; in consideration of which the defendant covenanted to pay to the plaintiff 1,600 dollars, as follows: 400 dollars to be paid down in money ; 150 dollars in obligations, at the same time, and on the execution and delivery of the deed; and the residue to Jacob Smith, who held a mortgage against the premises. The breach alleged was the non-payment of the sum of 150 dollars, in obligations. At the trial, before Mr. Justice Yates, at the Herkimer circuit, in June, 1819, the plaintiff proved that the deed had been duly executed and delivered to the defendant; and it was admitted, that the defendant had paid down the 400 dollars in money; and the only question was as to the payment of the 150 dollars in obligations. It was proved on the part of the defendant, that the parties met together, in September, 1817, and after the deed was executed, the defendant counted and laid down the 400 dollars, and also two promissory notes, one executed by Amos Root, the 6th of May. 1817, for 100 dollars payable to G. & W. Kretsinger ox bearer, six months after date ; the other for 59 dollars and 38 cents, and made by John Vrooman, Junior, payable to G. .& if’. Kretsinger or bearer, and then due; and the plaintiff was to give the defendant % note for the excess of 9 dollars and 38 cents : Some dispute having arisen between the parties, the plaintiff took up the money and notes which had been tendered by the defendant and laid on the table, and kept them, and refused to return them ; and he threw on the table the deed, and his note for 9 dollars and 38 cents, which the defendant then refused to accept: But the defendant finally took the deed and note, the plaintiff refusing to return the money and the notes taken up by him. The plaintiffs counsel objected up by nil... r..~ ~.- • • • to giving evidence of the receipt of the notes by the plaintiff, without a notice to produce them, which objection was overruled by the judge.
    The plaintiff gave evidence to show that Roofs note was not good, but that he was insolvent; and that the defendant was to endorse the notes, and the plaintiff to make oath that the premises were unincumbered, except as to the mortgage mentioned.
    The plaintiffs counsel insisted, that by the terms and legal construction of the agreement, the notes were not, under the circumstances, a payment or discharge of the sum of 150 dollars so agreed to be paid in obligations ; but the judge charged ^ie JUiT that the notes were, in judgment of law, a payment of that sum, and the jury, under his direction, found a verdict for the defendant.
    The case was submitted to the court without argument.
   Spencer, Ch. J.,

delivered the opinion of the court. The plain tiff moves for a new trial, on two grounds: 1st. That parol evidence to prove the notes received by the plaintiff, or their contents, was inadmissible, no notice having been given to produce them.

2d. That the covenant to pay 150 dollars in obligations, at the time and on the executing and delivery of the deed, was not satisfied, by the delivery of notes producing no avails.

As to the first point, the case does not state the nature oí the pleadings, and we ought to intend that the defendant either pleaded or gave notice that he would give in evidence, that he had delivered to the plaintiff, pursuant to the covenant, at the time of the execution and delivery of the deed, *obligations amounting to one hundred and fifty dollars, which were then and there accepted. This we ought the more strongly to presume, because it is not made an exception that the pleadings would not have authorized the admission of the proof. If so, then the principle of the case of the People v. Holbrook applies. (13 Johns. Rep. 92.) After reviewing all the cases, we held that in an action of trover for bonds or notes, no notice to produce the thing sought to be recovered was necessary; and that where the form of action gives the party notice to be prepared to produce the instrument, if necessary to falsify the evidence of the other party, it is not necessary to give notice to produce the instrument.

These principles apply directly to this case: The form of the pleading, we must presume, gave the plaintiff notice, that he had received, and had in his possession, obligations amounting to more than 150 dollars ; he was bound, then, if he would falsify the allegation, to have come prepared to produce them.

The payment of 400 dollars in money, and 150 dollars in obligations, and the execution and delivery of the deed, were dependent acts, and to be performed simultaneously, in Whitbeck v. Van Ness, (11 Johns. Rep. 411.) all the cases in which the delivery and acceptance of a bill or note would or would not be a payment, were examined and reviewed, and the result was, that taking a bill or note, for goods sold at the time, was a payment, because it was part of the original contract, but that for a precedent debt, the acceptance of a bill which turned out to be bad, was no payment. Among other cases, we referred to that of the Bank of England v. Newman, (1 Lord Raymond, 442.) in which Lord Holt ruled, that if a iuau has a hill, payable to him or bearer, and lie delivers it over, for money received, without endorsement, this was a plain side oí' the bill, and he who sells it does not become a new security. In the present case, the notes were not deliver:ed in satisfaction of a precedent debt; they were delivered on the original contract, and the defendant did not endorse them, nor was he required to do so: They were taken then at the peril and risk of the plaintiff, as regarded *the solvency of the drawers, unless, indeed, there were fraudulent representations, or a fraudulent concealment of facts. No such representations or concealment, however, were pretended, and had they existed, the plaintiff could not have availed himself of such facts in this case, which is an action of covenant for the non-delivery of the oblfoaiimts. The mere question was, whether obliga-tiuiw to the amount stipulated had been delivered. The nature of the issue shut out all inquiry as to the solvency of the drawers uf the notes, or fraud in passing them.

Motion for a new trial denied, 
      
      
         Vide Robb y Montgomery, 20 Johns. Rep. 15. Parker v. Parmela, Ibid. 130. Hudson v. Swift, Ibid. 24. Canfield v. Wescott, 5 Cowen, 270, 271. Note a, Tompkins v. Elliot, 5 Wendalls Rep. 496.
     