Raymond v. Merchant

[150] Curia, per Savage, Ch. J. Under the pleadings in this case> afid the previous decisions of this Court, (Mather v.Bush, 16 John. 233, Matter of Wendell, 19 John. 153,) the question raised is, whether the note executed in Vermont be an extinguishment of the previous contract, or indebtedness on which the note was predicated. The principle adopted by this Court, in Homles v. D'Camp, (1 John. Rep. 36-7,) is, that a negotiable note is not absolutely an extinguishment of an antecedent, simple contract debt; but that the plaintiff may recover upon the original consideration, provided he shews the note to be lost, or produces and cancels it at the trial. Had the plaintiff declared on the original consideration, a plea that a note had been given for it, would have been bad on demurrer. The giving the note must be taken advantage of on the trial. I think, therefore, that as the contract was made in the state of New-York, and is not extinguished by the note given in Vermont, the discharge is a good defence. The defendant must have judgment.