
    Joseph Tufts, Administrator, versus Samuel Kidder.
    A owing B a note, gave several new notes to B, all together being of smalki amount than the old note, and payable at future days. At the same time they entered into a written agreement, that if the new notes were paid “ when due,” the old note should be given up to A to be cancelled, but if any of the new notes were not paid (t when due,” the old note should be in force, and B in such case agreed, that if he should see fit to enforce the old note, he would enter upon it such sumo as A should have paid on the new note, and return the other new notes to A. A paid the first of the new notes. But the second not being paid on the day when it became due, B had a writ made out on the old note against A, and afterward indorsed on the old note the amount which A had paid, and returned the new notes, and then delivered the writ to the officer, who served it: —
    
      Held, 1. That payment of the new notes on the days when they became due, was necessary, to entitle A to the benefit of the agreement:
    2. That A having failed to perform this part of the agreement, B had a right to sue on the old note :
    S. That the indorsing of the first payment on the old note, and the returning of the other new notes, was not a condition precedent, in order to entitle B to sue on the old note :
    4. But it seems, that if the performance of these acts had constituted a condition precedent, they were done seasonably.
    Assumpsit to recover the amount due on thirteen promissory notes and four checks. The defendant pleaded non assumpsit, and actio non accrevit infra sex annos.
    
    The case was tried before Morton J. The plaintiff gave in, evidence the notes and checks, all of which were payable more than six years before the suit was brought. He also gave in evidence a written agreement between his intestate and the defendant, dated January 24, 1824, by which, after reciting that the defendant was indebted to the intestate in divers sums of money according to the notes and checks, and from misfortunes was unable to pay the full amount of them, the defendant agreed to give the intestate four new notes, which it is said “he has this day given,” for 500 dollars each, payable in two, three, four, and five years, and that the intestate should keep the old notes and checks until the new notes were paid, and that if the new notes or any of them were not paid, “ when due,” the old notes and checks should all be in force, deducting any sums the defendant should have paid on any of the new notes. By the same instrument the intestate agreed, that when the new notes should be all paid, he would give up the old notes and checks to the defendant to be cancelled, and that they should then be void ; but that if any of the new notes were not paid “ when due,” and he should see fit to enforce payment of the old notes and checks, he would enter upon them such sums as Kidder should have paid on any of the new notes, and give up to the defendant the new notes which should be unpaid. The instrument also contained an agreement by the defendant, to purchase a pew of the intestate and pay 150 dollars for it. The agreement concluded by saying, that the defendant was to have three months to pay each of the new notes, in addition to the times mentioned in them.
    The first of the new notes was paid. The second note, which fell due April 24, 1827, was not paid on that day. The next day, however, the defendant called on the plaintiff and said he was ready to pay it. But the plaintiff refused to receive payment, stating that as he was a trustee, acting for others, he had no right to accept it. The plaintiff, on August 27, 1827, gave up all the new notes to the defendant, and then delivered the writ in this suit to the officer, who immediately served it. It was admitted by the plaintiff, that the indorsement on the old notes, of the sums paid on the new note, was made after the writ was filled out, but before it was delivered to the officer. Two or three weeks afterwards the defendant offered the new notes to the plaintiff, but he refused to receive them. '
    Evidence was offered on the part of the defendant, which tended to show that he had provided funds and called at the plaintiff’s office on April 24, 1827, in order to pay the note which then became due, but that the plaintiff was not within.
    The defendant was defaulted. Judgment was to be entered on the default, or the plaintiff to become nonsuit, according to the opinion of the whole Court.
    
      Fletcher and Gordon, for the defendant.
    The indorsement upon some of the old notes, of the money paid on the new note, and the giving up of the remaining new notes to the defendant, were a condition precedent, until the performance of which the right of action upon the old notes was not revived This condition was not performed until after the suit was brought; for the filling out of the writ, not the delivery of it to the officer, is the commencement of the action. Gardiner v. Corson, 15 Mass. R. 500; Johnson v. Reed, 9 Mass. R. 78; New England Bank v. Lewis, 2 Pick. 125; Ford v. Phillips, 1 Pick. 202.
    
      
      Oct. 15th
    
    
      The plaintiff cannot elect to rescind the agreement, without restoring the defendant to the same condition in which he was before it was made. But the arrangement about the pew still remains unaltered.
    The defendant, if it was necessary for him to pay on the very day the note fell due, did all that he could, for he went to the plaintiff’s office, but he was not within. If the plaintiff intended to hold the defendant to a strict compliance with the agreement, it was his duty to be at his office to receive the money.
    But the defendant was not bound to pay on the very day on.which the note fell due. The expression “when due” is indefinite ; when means after. A tender to the plaintiff upon the new' note at any time before he had elected to enforce the old notes, was in season.
    
      Hoar and Tufts, contra,
    
    denied that indorsing the money and giving up the new notes, were a condition precedent. If they were, those acts, having been dene while the writ still remained in the plaintiff’s power, were done seasonably. New England Bank v. Lewis, 2 Pick. 128; Stanton v. Blossom, 14 Mass. R. 116; Shed v. Brett, 1 Pick. 412. The acts proved on the part of the defendant, did not amount to a tender, or excuse the want of it, on the day when the note fell due. Wade’s case, 5 Co. 115; Co. Lit. 202.
    vVov. 23d.
    
   Wilde J.

delivered the opinion of the Court. It being admitted that the notes and checks claimed by the plaintiff were originally valid contracts, he is entitled to recover, unless these demands have been discharged, as the defendant contends they have been, by a compromise made with the plaintiff’s intestate. The defendant having met with misfortunes in business and being unable to pay the full amount of his debts, the intestate agreed to relinquish a part of his claims, on the condition that the residue should be paid by instalments at the times specified in the new agreement. But the old notes were not discharged, but were to be retained by the plaintiff’s intestate to await the performance of the condition of the new agreement. The condition was, that if the new notes, taken in pursuance of the agreement, or any of them, should not be paid when due, then the intestate was to be at liberty to enforce the payment of the original notes and checks, indorsing on them such sums, if any, as might be paid on the new notes, and giving up such as might remain unpaid to be cancelled. One of the new notes was duly paid. Another became payable, but was not paid the day it fell due. The defendant offered to pay it the day after, but this the plaintiff declined, insisting on bis strict legal rights, which he conceived he had no right to waive, acting as he did as trustee of the heirs and creditors. The question then is, whether the non-payment of the note on the day it fell due was a breach of the condition of the new contract ; and we can entertain no doubt that it was.

The condition will bear no other construction than the one contended for by the counsel for the plaintiff. The object of the condition was, to insure the punctual payment of the new notes, under a penalty.

It has been argued that the action was prematurely commenced, as the plaintiff’s right of action did not revive on the old notes and checks until he had indorsed the money paid on one of the new notes and had given up the others. But if this were necessary, it appears to have been seasonably done ; it being admitted that the indorsement was made before the delivery of the writ to the officer. But we apprehend this was not necessary, provided the plaintiff was ready to do it; for we do not consider the indorsement of the money and giving up the new notes as a condition precedent. His right of action revived immediately on the breach of the condition by the nonpayment of one of the notes. He would not however be entitled to judgment until he had performed the stipulation on his part in relation to the new notes.

Motion to take off the default overruled. 
      
       See Makepeace v. Harvard College, 10 Pick. 305.
     