The opinion of the Court was by
Shepley J.Assuming that no person would voluntarily pay a debt which he did not owe, it has been decided, that payment of part of a debt liquidated and ascertained by a contract, is an admission that the whole was then due. An indorsement by the holder, after the statute might operate, affords no satisfactory evidence of such acknowledgement. It might be made without any payment or consent, of the debtor. If the debtor pay through the agency of another person, the effect is the same as a payment by himself. The act is his own. The testimony of Brooks proves, that the note of Loder was delivered to the plaintiffs as collateral security for the note in suit, “ to collect the same and apply the proceeds to the payment” of it. The plaintiffs having accepted it, were obliged to comply with these directions. As soon as they collected money upon it, they were obliged to consider it as a payment of so much on this note. Proof of payment on the Loder note, would operate as proof of payment of the same sum on this note. It is not perceived how payment thus made can differ in principle from payments through any other agent. The plaintiffs became the legal agents of the intestate, coupled with *348an interest. And they were responsible for any neglect of duty either in the collection or application of the money. If they acted faithfully, and used all reasonable diligence to collect, the collection and application of the money was made according to the order of the intestate. And the payments on this note would then be made from his property and by his direction. Neither party to the arrangement could avoid it, or the consequences resulting from it, without the consent of the other. These principles were recognized in the case of Porter v. Blood, 5 Pick. 54, where the maker of a note placed certain merchandize in the hands of the holder to be sold and the proceeds applied in. payment of it. Yet in that case, it was decided, that the sales were not made within a reasonable time, and that the indorsement of the proceeds could not therefore be considered as made by the order of the maker. The holder could sell the merchandize when he pleased. Whether the Loder note could be collected did not depend alone upon the diligence of the plaintiffs. The ability and disposition of the maker to pay were to be considered. If the plaintiffs have not used that reasonable diligence which the law requires, and the indorsements have been made later than they should have been, they cannot be considered as made by the order of the defendant; otherwise they must be so considered, and the plaintiffs will be entitled to recover.
Nonsuit set aside, and new trial granted.