It is well settled, both on authority and principle, that the acceptance by the creditor, of the note of a third person for an antecedent debt, is no extinguishment of the debt, unless it is shown that there was an agreement between the parties that it should operate as an extinguishment; and that in such case, theonus is upon the party seeking to set it up as a payment. But where there is no debt existing between the parties, and the one delivers to the other property and receives in return the note of a third person in full or part payment, and gives a receipt saying that it is received in full or part payment, the presumption is that it was so received, and the onus is then upon the party receiving such note to show the contrary.
In the case at bar, the price of the goods being more than $50, and as there was no payment, memorandum in writing or part delivery until the 12th October, there was no debt until that time; consequently the case is one where the creation of the debt and the receipt of the note were cotemporaneous acts. And the whole question was left fairly to the jury. They have found that the note was received in payment and their verdict is conclusive.
The judgment should be affirmed.
Judgment accordingly *Page 173