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The acceptance of a bill of exchange, in payment for goods sold, will operate as a bar against any proceeding to rescind the sale, and substitute for the original indebtedness, the liability on the paper so received. Francia vs. Del Banco, 2 Duer, 133.

The question as to when the taking of the note of a third party will, or will not operate as a satisfaction of the original indebtedness, will be considered at the close of the next subdivision.

A receipt given to one of two joint and several debtors, in full of his obligation, in consideration of a part payment, will not operate to discharge either., Buckingham vs. Oliver, 3 E. D. Smith, 129.

(d.) PAYMENT.

Closely akin to the foregoing defence, is that of payment, when admissible. It should, of course, be averred clearly, and, if made in any spe cial manner, the particulars should be stated.

To constitute a payment, money, or some other valuable thing, must be delivered by the debtor to the creditor, for the purpose of extinguishing the debt, and the creditor must receive it for the same purpose. A defendant cannot deprive the plaintiff of his costs, after action is commenced, by an unaccepted payment. Even a remittance of the debt, if repudiated and offered to be returned, will be ineffectual. The defendant, if he wishes to obtain protection against further costs, must, under such circumstances, withdraw the amount, and make a regular tender. Kingston Bank vs. Gay, 19 Barb., 459. Nor will even the acceptance of such a payment, by an agent, unaware of the pendency of an action, avail to deprive the plaintiff of his right to costs, and to continue the action unless they are paid. Bogardus vs. Richtmeyer, 3 Abb., 179. To render a payment available, it must be of actual value. Thus, one made in bank-bills, actually spurious, though supposed to be good, was held not to discharge the debt. Baker vs. Bonesteel, 2 Hilt., 397. The giving of the debtor's own check is not payment, unless such check be honored, or be parted with for value. An answer pleading a payment of this nature must, therefore, allege other facts in addition, showing that such check is out of the possession or control of the plaintiffs. Strong vs. Stevens, 4 Duer, 668.

The giving of the debtor's own note.is, in no respect, a satisfaction of the indebtedness, even though it be expressly given for that purpose. It is, at the best, but the substitution of one promise for another. Moss vs. Shannon, 1 Hilt., 175; and cases there cited. Its only effect may be, if negotiable, to suspend the remedy of the plaintiff until its maturity. Geller vs. Seixas, 4 Abb., 103. See also Central City Bank vs. Dana, 32 Barb., 296; Bates vs. Rosekrans, 23 How., 98.

As to the necessity of a payment to the sheriff, of moneys due to

an execution debtor, under the special authority for that purpose, conferred by section 293, being, in all cases, fully and specially pleaded, see Calkins vs. Packer, 21 Barb., 275. See also, as to the necessity of such a payment being compulsory, in order to be available as a defence, Richardson vs. Ainsworth, 20 How., 521.

Where a party relies on a presumption of payment, it has been held that the proper mode of pleading it is to aver payment, and give in evidence the facts raising the presumption. Pattison vs. Taylor, 8 Barb., 250; 1 C. R. (N. S.), 174; Austin vs. Tompkins, 3 Sandf., 22; New York Life Insurance and Trust Company vs. Covert, 29 Barb., 435; Morey vs. Farmers' Loan and Trust Company, 4 Kern., 302 (307). See also, in court below, same case, 18 Barb., 401 (406). See, generally, as to the presumption of payment, Martin vs. Gage, 5 Seld., 398.

As to a general plea of payment to a party specified being sufficient, without averring in detail the particular facts, see Farmers' and Citizens' Bank of Long Island vs. Sherman, 6 Bosw., 181.

Receipt of the amount due upon a note, by the holder, after maturity, even from a stranger, operates, in the absence of express stipulation to the contrary, as a payment, and not as a sale. Burr vs. Smith, 21 Barb., 262.

Payment by the maker of the note, at a bank, where it has been deposited by the payee for collection, extinguishes the debt. In the event of a subsequent misapplication by the bank, its liability is only as agents of the payee. Smith vs. President, &c., of Essex County

Bank, 22 Barb., 627.

The erroneous stamping of a note as paid, by the teller of the bank where it was made payable, was held not to operate as a payment, where the mistake was at once discovered, and a request made to correct it. Irving Bank vs. Wetherald, 34 Barb., 323.

Payment to an agent authorized to sell goods, was sustained as a valid payment to his principal, in Higgins vs. Moore, 6 Bosw., 344. The taking of a check of a third party will not, per se, operate as a satisfaction of a claim, unless in pursuance of an express agreement to that effect. Jobbett vs. Goundry, 29 Barb., 509.

Nor will the taking of the note of a third person have that effect, unless there be an agreement to take it in payment. Davis vs. Allen, 3 Comst., 168; Vail vs. Foster, 4 Comst., 312; Noel vs. Murray, 3 Kern., 167; affirming same case, 1 Duer, 385; Higby vs. New York and Harlem Railroad Company, 3 Bosw., 497; 7 Abb., 259. Nor will the conditional taking of such a note operate as payment. Torry vs. Hadley, 27 Barb., 192.

The presumptions which lie, in the absence of an express agreement,

are thus defined, in Noel vs. Murray, 3 Kern., 167, above cited: When such a note or bill is received on a precedent debt, the presumption is that it was not taken as payment, and the onus of establishing that it was so taken is upon the debtor. But, when it is received cotemporaneously with the contracting of the debt, the presumption is that it was agreed to be taken in payment, and the burden of proving the contrary rests upon the creditor.

Where the note of a third party has been actually agreed to be taken in payment, the satisfaction will be complete. Webb vs. Goldsmith, 2 Duer, 413; Purchase vs. Mattison, 3 Bosw., 310. And, in such case, the seller of goods, on such an agreement, may be bound to perform it, even though the maker of the note, agreed to be taken, may become insolvent before the transaction is complete. Sigler vs. Smith, 4 E. D. Smith, 280. This is not, however, the case with regard to an executory agreement, where, before performance, the notes originally agreed to be taken, have been deteriorated in value by such an insolvency. Benedict vs. Field, 16 N. Y., 595; affirming same case, 4 Duer, 154.

Where a valid agreement has been made, under which the vendor of goods is bound to take the note of a third party, that note remains his, even though, at the time of a tender, he refuse to receive it. Des Arts vs. Leggett, 16 N. Y., 582.

And, when such a note has been taken conditionally, a subsequent performance will operate as a satisfaction, and waive a previous breach of the conditions. Conkling vs. King, 6 Seld., 440.

Nor, when such a note has been agreed to be taken for goods, will the fact of its being indorsed by the purchaser, prevent its operation as a payment of the vendor. The vendor will, under such circumstances, be bound to treat him as an ordinary indorser. Soffe vs. Gallagher, 3 E. D. Smith, 507.

Prima facie, an express receipt is conclusive evidence of payment. Lambert vs. Seeley, 2 Hilt., 429. It is, however, always explainable, so far as regards the amount of consideration given. But not so in its operation as a contract, or as an admission collateral to the payment. See Coon vs. Knapp, 4 Seld., 402; Egleston vs. Knickerbacker, 6 Barb., 458; and cases there referred to. See, however, as to a receipt in full, obtained for the purpose of defeating a demand for repayment of money lost at play, Hendrickson vs. Beers, 6 Bosw., 639. As to a receipt to one of two joint-debtors only, not operating as a full discharge, see Buckingham vs. Oliver, 3 E. D. Smith, 129.

As to the effect of payment of the amount due upon a bond and mortgage, in extinguishing the security wholly, or pro tanto, as between the debtor and creditor, vide Champney vs. Coope, 34 Barb., 539.

As to the collection of collaterals operating as to a payment, pro tanto, of the debt which they were intended to secure, vide Marine Bank of the City of New York vs. Vail, 6 Bosw., 421.

(e.) TENDER.

This mode of defence has application, rather to the costs than to the right of recovery of the plaintiff in the action. It, in fact, admits the latter, and has been held, accordingly, to be inconsistent with a general denial. See Livingston vs. Harrison, 2 E. D. Smith, 197. Tender may be made, either before or after action. The former is general in its nature, and in exercise of a common-law right. After action brought, the mode of making it is, on the contrary, a matter of special statutory regulation. Vide 2 R. S., 553, 554, sections 20 to 23, inclusive.

The common-law tender, before action, must, in order to be available, be made either on the day on which the amount is due, or, if subsequently, must include interest from that date, down to the day of the tender. Livingston vs. Harrison, supra.

It should include all that is due in respect of the same transaction. Thus, a tender of the amount due on a mortgage, without including an assessment paid by the mortgagee, and interest on that assessment, was held unavailing to extinguish his lien. Brevoort vs. Randolph, 7 How., 398.

See, however, a tender, deficient by a few cents only, practically supported in Spencer vs. Tooker, 21 How., 333; 12 Abb., 353.

A tender, when made, must be in current coin, unless the creditor waive that condition, and, where no special place is appointed for the purpose, the debtor is bound to seek the creditor, in order to make it. Harris vs. Mulock, 9 How., 402. As to evidence of waiver of the strict conditions of a tender being admissible, under a plea of tender made, see Holmes vs. Holmes, 5 Seld., 525; affirming same case, 12 Barb., 137.

In relation to the effect of tender of an insurance premium, when made in due time, and as to a tender on Monday being available, when the last day of a specified term falls on Sunday, see Campbell vs. International Life Assurance Society of London, 4 Bosw., 298. To be available, a tender must be actual, and sufficient. See Hawkins vs. Avery, 32 Barb., 551 (556). A mere offer, even followed by payment into court, will be inefficient. Hornby vs. Cramer, 12 How., 490. Nor will a mere remittance in intended payment be effectual. If refused, it must be withdrawn, and actually tendered. Kingston Bank vs. Gay, 19 Barb., 459. A tender must also be unconditional, save only as regards negotiable paper, which the debtor is en

titled to inspect, and to have delivered to him at the time. Wilder vs. Seelye, 8 Barb., 408.

Tender of the amount due on a mortgage, if made at any time. before foreclosure, discharges the lien; and a refusal bars subsequent proceedings in equity. Nor, as, in this case, it does not discharge the debt, but only defeats a remedy, is it necessary that it should be kept good. The mortgagee, if he refuses, refuses at his peril. By accepting it he incurs no hazard, as, even if the sum be insufficient, the security remains. Kortright vs. Cady, 21 N. Y., 343; reversing same case, 23 Barb., 490; 5 Abb., 358; also, at special term, 12 How., 424.

In replevin, an unconditional offer to restore the goods claimed before the commencement of the action, is equivalent to a tender before suit brought, and will have the same effect. Savage vs. Perkins, 11 How., 17.

Where, however, the tender goes directly to the plaintiff's right to recover, and not merely to a collateral remedy, it must not only be made sufficiently, but must be kept good. The defendant, in such cases, must not simply aver tender and refusal, but also that he always has been, and still is ready with the amount, and should pay it into court, and the date should be stated. Wilder vs. Seelye, 8 Barb., 408; Living ston vs. Harrison, 2 E. D. Smith, 197. To this amount the plaintiff is entitled in any event, even if the judgment be against him. Logen vs. Gilleck, 1 E. D. Smith, 398; Livingston vs. Harrison, supra. See also, generally, Warburg vs. Wilcox, 7 Abb., 336; Place vs. Union Erpress Company, 2 Hilt., 19; Stevens vs. Hyde, 32 Barb., 171.

In Hull vs. Peters, 7 Barb., 331; 3 C. R., 255, tender made, before knowledge of the fact that a declaration had been filed, was held to be effective, as a tender before suit brought. Under the present practice the defendant will, of course, be entitled to the benefit of one, if made at any time before actual service of the process upon him.

As to the effect of tender of performance of a special contract, at the time and place, or in the manner appointed, see Billings vs. Vanderbeck, 23 Barb., 546; Renard vs. Tuller, 4 Bosw., 107.

The statutory tender, after action brought, is subject to several conditions, imposed by the provisions of the Revised Statutes, above referred to. 2 R. S., 553, 554, sections 20 to 23.

Those conditions, and the effect of such a tender, when made, are so closely analogous to the provisions of sections 385 to 387, as to an offer before judgment, that the latter may be fairly considered as superseding them in effect. It is, in fact, much more advantageous, relieving the defendant from the necessity of seeking the plaintiff, and making an actual tender of money, and giving to a mere written offer, the same practical effect. It seems, therefore, unnecessary to enter into any

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