The question is, whether the plaintiff’s receiving the note of E. and A. Townsend discharged the original right of action against the defendants for the goods sold and delivered. On this subject there have been contradictory decisions in different countries. In the case of Anderson v. Henshaw, 2 Day’s Ca. 27. the principle was adopted, that where a bill was received in full of an antecedent debt, it discharged the original demand, and that no action could be maintained upon it, though the bill turned out to be unproductive, and there was no proof of an agreement to take the bill at the risk of the plaintiff. In the case of Ellis v. Wild, 6 Mass. Rep. 321. a similar question arose, and it was there determined, if A. sells merchandize to B., and agrees to receive certain promissory notes in payment, if the notes are afterwards discovered to be forged, and B. was ignorant of the fact, A. cannot afterwards resort to B. for the merchandize ; otherwise if the original bargain was for cash, and the notes were received by the vendor as an accommodation to the vendee. Here the principle is adopted, that if the notes were received in payment, the original contract is discharged, though they were of no value, and the plaintiff did not receive them at his risk. If the authority of these cases is to govern, the court should have charged the jury, that if they found the note from the Townsends was received in payment for the spices, their verdict must be for the defendants ; otherwise for the plaintiff.
A different doctrine seems to have been adopted in England. In Puckford v. Maxwell, 6 Term Rep. 52. Lord Kenyon says, if the bill which is given in payment does not turn out to be productive, it is not that which it purports to be, and which the party receiving it expects it to be ; and therefore, he may consider it as a nullity, and act as if no such bill had been given at all. In Owenson v. Morse, *4167 Term Rep. 66. he says, “ If the defendant had agreed to take the notes as payment, and to run the risk of their being paid, that would have been considered as payment, whether the notes had, or had not, been afterwards paid.” By these cases it appears not only to be essential that the notes should be received in payment, but that the party receiving them should agree to risk their being paid ; otherwise the original right of action is not discharged if the notes prove unproductive. The principle adopted in these cases would warrant the charge of the court ; for it does not appear that there was an agreement that the plaintiff should risk the ability of the Townsends to pay their note.
The same doctrine has been recognized in the state of New-York ; and it seems there to have been determined, when notes are taken and a receipt in full is given, yet it is to be understood they are in full when paid, and if not productive they do not discharge the original contract, unless there was an absolute agreement to risk their being paid. Tobey v. Barber, 5 Johns. 68. Putnam v. Lewis, 8 Johns. 389. These authorities would warrant the decision of the court; and as this transaction took place in the state of New-York where these authorities are binding, they are conclusive in the present case. Without considering, then, what principle ought to be adopted in a similar case arising in this state, I am of opinion, that a new trial ought not to granted, on the authority of the decisions in the state of New-York, which, being the law of the place, must govern this transaction.
In this opinion the other Judges severally concurred.
New trial not to be granted.