The plaintiff held the rights of Douglass & Co. at the commencement of the suit. Those rights were to have the claim on ,the original note revive in default of payment of the notes given on the compromise. The notice from the defendants that the compromise notes would not be paid, was not sufficient to relieve Douglass & Co. from the duty of demanding payment of the notes at the Tradesman’s Bank, where they were made payable.
The compromise was originally bindings on the ground that the other creditors were parties to the contract. They had not assented to this notice. Their rights could only be affected by a presentment of the notes for payment.
We think it makes no difference whether the other creditors were paid under the first deed or not. The money was provided for the payment of the plaintiff’s notes, and they should have been presented, notwithstanding the notice.
As the defendants placed the money in the bank to pay the notes given on the compromise, the failure to pay has not taken place, and the original debt was not revived.
Judgment reversed and new trial ordered ; costs to abide the event.
Clerke, Ingraham and Gould, Justices.]