¶1delivered the opinion of the court. ' The . question is, whether, under the circumstances of this case, Camp is not discharged from all responsibility upon this. note. There.is nothing in the case showing that Downing is insolvent, or" unable to pay the note he gá.ve in" his individual capacity.. As Downing had received property to’ discharge the -note, the rede-, ¡¡very of it to the plaintiff was unjust, as it respected Camp-, and he is justified in availing himself of all legal measures.' td" exonerate himself from the payment. ' The .circumstances op-. pear to fully warrant the -conclusion, that the individual note off
¶2*411Downing was intended to be given to, and was actually received by, the plaintiff, in satisfaction of the partnership note. This was delivered up for the purpose, as must necessarily be inferred, of being destroyed. This is a much stronger case than that of Shechy v. Mandeville. (6 Cranch, 264.) It is there held, that, although, as a general principle, a promissory note will not of itself discharge the original cause of action, yet if, by agreement, the note is received as. payment, it satisfies the original contract, and the party receiving it must take his remedy on it. That case also shows that the doctrine of nudum pactum has no application to cases like the present; there also, as in this case, it was the note of one of the; firm that was held to discharge the. partnership. The same doctrine is maintained in Newmarck v. Clay, (14 East, 239.) and in Toby v. Webster, (5 Johns. Rep. 72.) ■ This court considered the acceptance of a note as an extinguishment of a pre-existing debt, if agreed to be received as payment; and Whetherby v. Mann, (11 Johns. Rep. 518.) is' a still stronger case. It is there held, that when a negotiable note has been received in satisfaction of a judgment, it is an extinguishment of the judgment debt. If the facts, then, in the case before us, will warrant the conclusion, that when the individual note of Downing was taken, and the partnership note delivered up, it was intended and agreed to be considered as payment of the note in question, there can be no doubt but that, in judgment of law, it will operate as a satisfaction of the partnership note ; and that the facts, not only fairly, but necessarily, lead to such a conclusion, will, in my opinion, admit of no doubt. The defendant i,s accordingly entitled to judgment.
¶3Judgment for the %fendant.