
    Witherby against Mann and Mann.
    NEW YORK,
    October, 1814.
    «lb!eenoSas expressiyinsatisfaction of a judgment, it is an extinguishment of the judgment debt,
    the defendant, cote,^entered tract oifwhich was recovered4 es surety, he may maintain a» action acip’af,although no'Satisfaction «ord?8andf the aains unpaid?
    THIS was an action of assumpsit on a special agreement to indemnify, and on the money counts. It was tried at the Chenango circuit, in June, 1814, before Mr. Justice Spencer. ° ’
    . . . , The plaintiff had, on the 30th of July, 1812, joined with . . . J the delendants, as their surety, in a promissory note to U. van*. derlyn for 89 dollars and 53 cents, payable in three different instalments. The defendants, on the same day, entered into a written agreement with the plaintiff to keep him harmless from a^ costsi trouble, and damages, by reason of his signing the note. Judgments were recovered by Vanderlyn on each of . v the three instalments.
    
      Vanderlyn, who was produced as a witness, testified that he had received from the plaintiff twenty dollars on the judgment on the second instalment; and that upon the judgment on the ^ast instalment, he had received from the plaintiff his promissory negotiable note for 52 dollars and 17 cents, being the amount of that judgment, which note remained unpaid, and was received by him in full satisfaction of the judgment, and for which he gave a receipt as for so much money, being the amount of the judgment. It was also proved that the plaintiff had been put to some trouble and expense in consequence of the proceedings against him as surety.
    • The judge charged the jury that the evidence amounted to proof of a satisfaction of the judgment on the last instalment, and that the plaintiff was entitled to recover the amount of the same, as well as the 20 dollars which he had paid, besides damages for his necessary trouble and expense. The jury accordingly found a verdict for the plaintiff for 86 dollars and 43 cents.
    Ii was agreed that if the opinion of the court should be that the plaintiff was not entitled to recover the amount of the judgment on the last instalment, judgment of nonsuit should be
    a. motion was made to set aside the verdict, and for a new ferial
    
      Van Buren, for the defendants,
    contended that the giving the promissory note was not a satisfaction of the judgment; and if it were, it was not, under the circumstances of the case, a payment, so as to give the plaintiff a right of action against the defendants, without showing that the judgments were satis~ fled and discharged of record.
    Again, the third count alleges that the plaintiff paid the 52 dollars for the defendants. To support his action on this count, the plaintiff must show that he actually paid the money. Giving a note or bond is not such a payment as will maintain the action.
    
    Vanderlyn, contra,
    insisted that a negotiable note, like bank paper, when received in payment, is equivalent to so much money. It wa~ so decided by Lord Kenyon, in Barclay v. Gooch, and which was recognised by this court in the case of Cumming v. Hackley. In Drake v. Mitchell, it was admitted that if it had been averred and shown~ that the note had been accepted in cati~faetion of the debt, it would have been a suffi~ dent bar.
    In Sheehy v. Mandeville, Marshall, Ch. J. considered it as a principle well mttled that the note of one of the parties, or of a third person, may, by agreement, be received in payments The came principle is laid down by this court hi Tobey v. Barber, and in Johnson v. Weed.
    
    In the civil law, by a novation or substitution of a new debt for an old, the old debt is extinguished by the new one contracted in its stead; and though, by the English law, a mere agreement to substitute one conti~act in the place of another, does not operate as ai~ extinguishment; yet if the new contract is executed or accepted in satisfaction, it operates as an extinguishment, and may be pleaded in bar of the original debt.
    
    By the civil law, to entitle the surety to bring his action ~against his principal, for the debt of the principal discharged by the surety, it makes no difference whether such payment has been made in money, or by a compensation or novation.
    
    This action is brought on the special count in the declaration, and it is that on which the plaintiff relies; not on the money counts.
    There is but one point for the consideration of the court, that, is, whether the note given to H. Vanderlyn was a payment and satisfaction of the original debt or not.
    
      
       8 Johns. Rep. 202.
    
    
      
       2 Esp. N. P. Cases, 571.
    
    
      
       8 Johns. Rep. 202.
    
    
      
       3 East, 251.
    
    
      
       6 Cranch, 253, 264.
    
    
      
       5 Johns. Rep. 68.
    
    
      
       9 Johns. Rep. 313.
    
    
      
       Pothier by Evans, 381, 390, and notes, part 2. c. 6.S. 7.
    
    
      
       1 Pothier by Evans, 277, part 2, c. 6, s. 7.
    
   Yates, J.

delivered the opinion of the court. The questions js whether the note given for the payment of 52 dollars and If cents, is such an extinguishment of the debt due on the judgment, for the last instalment, as to authorize this action either on the special agreement or the money counts.

The mere giving a bond for the debt of another is no payment; and an action for money paid, laid out, and expended for the use of the person for whose debt the obligation is given, will not lie. The money must actually be advanced, to sustain the action. (Cummings v. Hackley, 8 Johns. Rep. 202.) But this principle has not been extended to all kinds of securities thus given. There are cases in which negotiable paper has been held equivalent to the payment of money, to which it is in some measure analogous, as when the note has been negotiated, and is in the hands of an innocent endorsee. He, of course, would be protected : and, unless it was considered as a payment of the original debt, the drawer might be made to pay twice. So when the note has been accepted and paid in satisfaction of the debt. The note, in this case, has not been negotiated, but has been accepted and received by the party in whose favour the judgment was obtained, in satisfaction of the debt, which is sufficient to authorize . this recovery. The decisions cited against this, apply only to cases where the note or bill has not been accepted in satisfaction for the debt.

In Drake v. Mitchell, (3 East, 251.) the distinction is stated. There one of three joint covenantors gave a bill of exchange for part of a debt secured by the covenant, on which bill judgment was recovered; the court said that such judgment was no bar to the action against the three; because, the bill does not appear to have been received in satisfaction of the debt.

In Toby v. Barber, (5 Johns. Rep. 68.) this court decided, that a note is not a payment of a precedent debt, unless there is an express agreement to accept it in payment; and the same principle is laid down in Johnson v. Weed and another, (9 Johns. Rep. 310.)

The conclusive evidence in this case, as to the acceptance of the note by the holder of the judgment,, entitles the plaintiff to .retain this verdict. It was not necessary that satisfaction of the Jedigmeni should be entered to consummate his right to recover. The note having been given and accepted in extinguish-meat of the debt, is sufficient for the purposes of this action. The defendant has received the full benefit; the debt has been satisfied; and, as to him, it is the same as if so much money had been paid for him. It was proper evidence to support the count in the declaration, for so much money paid, laid out, and expended, and which the plaintiff ought to recover. The verdict must, therefore, stand, and the plaintiff is entitled to judgment.

Judgment for the plaintiff”  