
    Theophilus Thayer versus James Brackett.
    A. negotiable promissory note, payable on demand, was indorsed ten months after its date ; the indorsee neglected for four days to demand payment of the promissor, and, for three months, to notify the indorser of the non-payment; the indorser was held to be discharged.
    Where one makes a tender of money in discharge of a debt, he cannot insist on a receipt in full of all demands ; but must "rely on evidence, at the trial, of the tender, and that no more money was due.
    
      This action, which was in assumpsit, was submitted to the decision of the Court an agreed statement of facts.
    [*451] * From this statement it appeared, that the plaintiff was justly entitled to recover the sum of $ 190.25, demanded by him, except so far as the facts hereafter stated amount to a discharge.
    Prior to the commencement of this suit, the defendant paid to the plaintiff the sum of $ 147.80, for which he took the plaintiff’s receipt on account generally. A part of this payment was made by r note of hand signed by one Samuel Clarke, for $ 117.90, with interest, payable to the defendant or his order on demand, dated October 6th, 1812, and by him indorsed to the plaintiff. This transaction took place on the 9th of August, 1813. The plaintiff neglected calling on Clarke for four days after the indorsement of the note to him ; and he gave no notice to the defendant of the non-payment of the note until the 18th of November following, although the three parties lived within three miles of each other.
    Allowing the said note to be payment, there remained due from the defendant to the plaintiff the sum of $ 42.45 ; which sum, on the 18th of November, 1813, the defendant tendered to the plaintiff, requiring his receipt therefor in full of all demands, and at the same time offering to deliver the plaintiff all his other receipts to that time ; it being then agreed by the parties that the plaintiff had no other claim upon the defendant, unless as indorser of the said note. The plaintiff was willing to give a receipt in full of all accounts, but refused the other, whereupon the tender was withdrawn.
    It was referred to the Court, upon this statement, to decide, whether the plaintiff was entitled to recover any thing in this action, and, if any thing, how much ; and to enter up judgment accordingly.
   Parker, C. J.,

delivered the opinion of the Court. It is very clear that the neglect of the plaintiff to give notice to the defendant of the non-payment of the note which had been indorsed to him has discharged the defendant from his liability as indorser; [ *452] so that, if he had made an absolute tender *of the balance due on the account, after deducting the amount of the note, he would have been discharged from this suit.

But he lost the benefit of his tender, by insisting on a receipt in full of all demands, which the plaintiff was not obliged to give him. The defendant should have relied on his tender, and upon proof at the trial that no more was due. But he withdrew the tender, because the plaintiff would not comply with the terms which accompanied it. This cannot be deemed a lawful tender ; and, according to the agreement of the parties, judgment must be entered for the plaintiff for the balance of his account, and for his costs. 
      
       M'Kenney vs. Crawford, 8 Serg. & R. 351. — Poole vs. Tolleson, 1 M'Cord, 199.
     
      
      
         Glascott vs. Day, 5 Esp. 48. — Hegham vs. Baddeley, Gow, 213. — Ryder vs. Townsend, 7 D. & R. 119.—Strong vs. Honey, 3 Bing. 304--Evans vs. Judkins, 4 Cowp. 156. — Huxham vs. Smith, 4 Cowp. 21. — Loving vs. Cooke, 3 Pick. 48. — Saunders et al. vs. Frost, 5 Pick 259 — Laing vs. Meader, 1 Car. & P. 257.
     