I entirely concur in the judgment of this case, and in all that is said in the opinion of the court upon it. I take occasion, however, to say that if the question of payment were a new one in this court, I could not concur in the rule. In my private opinion, when one contracts a debt and presently gives his note or other obligation for the amount, the note or obligation given ought to be considered a payment, unless there be express agreement to the contrary. But I have far too great a reverence for that necessary, rule of judicial decision, sime decisis, to set up my own opinion, on such a point, against so many decisions the other way, running through so many years.
By the Court. — The judgment of the circuit court is reversed, and a new trial awarded.