¶1THIS was an action upon a bond, in which the defendant had joined as a surety for Mark Bird. Sometime after the bond was given, Bird delivered to the plaintiff certain bills of exchange; which, as appeared by an indorsement on the bond, were to be credited in part payment, when paid. (a.)*101For several years no suit was instituted on the bond, and the circumstances of Bird became greatly embarrassed. The bills had been duly protected for non-payment; and the plaintiff (who had never returned them, nor even, at the trial, did he offer to return them) furnished accounts in which he charged 20 per cent damages. The question, therefore, was whether the bills, were, under these circumstances, to be considered as a payment of so much of the bond? And in the charge to the Jury, it was ruled.
¶4—That originally the plaintiff had his election to consider himself either as an agent, or as a purchaser, with respect to the bills of exchange; but that the two circumstances, of retaining them in his own hands, and of charging 20 per cent damages, were sufficient evidence to shew, an election to receive them in payment; and that, therefore, for the amount of the bills the defendant was entitled to be credited in an action on the bond.
¶5Verdict accordingly.