This note having been indorsed long after it was due, it is open to the defendant to make the same defence against the indorsee, as he might have made, if the suit had been brought by the payee.
The note was dated on the 5th of December, and was payable on demand. On the day following, the defendant gave the payee a written executory agreement, stipulating to convey to him a part of the vessel at a sum certain, and acknowledging the receipt of $ 190 as an advance and part payment towards that sum ; and this agreement was accepted by the payee. It is conceded, that this sum of $ 190 is the same money for *492which the note on demand had been given. Tne Court are of opinion, that this agreement, by which both parties agreed to treat the money as an advance payment on the executory contract, was an accord and satisfaction of the debt due on the note, which discharged it, and by which it was effectually extinguished, though not actually cancelled, and that no title passed to the plaintiff by the indorsement. The instruction, we think, was right; and judgment is to be rendered on the verdict for the defendant.