¶1Admitting that an action can be maintained on the order stated in this case, I think that upon the facts now before us, the plaintiff ought not to recover.
¶2If the order had been drawn to secure the payment of a pre-existing debt due from the defendant to the plaintiff, and that fact had been satisfactorily and clearly proved, the plaintiff’s case would have been much stronger. There is some reason to believe that such is the fact, but the evidence leaves it doubtful whether the plaintiff’s demand had not been extinguished by the assignment of the mortgage against Thorne.
¶3Cornelius W. Brown and James S. Smith, the former a witness on the part of the plaintiff, and the latter on the part of the defendant, differ very materially in their relation of the circumstances attending the giving of the order, and of what took place afterwards. As far as their testimony was irreconcileable, the finding of the jury is conclusive j they having the right to judge to which of them they would give credit. Smithy however, is not impeached. *234and some facts are stated by him, and not disproved or contra<*icted by Brown, which, in my opinion, entitled the defendant to a verdict. The order is dated the 9th of December, 1804, and was accepted by Smith to be paid in ten or fifteen days. Smith says, that at the time limited and for two or three weeks thereafter, he was willing and prepared to pay it; but that the order was not presented for payment until some time in the ensuing March, when he had become insolvent.
¶4Independently of its being the duty of the plaintiff to present the order for payment at the time when Smith, by the terms of his acceptance, agreed to pay it ; and independently also of the plaintiff having failed to prove any kind of notice of non-payment to the defendant, I am inclined to think that the defendant is discharged, on the ground of gross negligence on the part of the plaintiff, whereby this money has been wholly lost.
¶5I think it highly probable, also, that the plaintiff accepted the mortgage and assignment thereof, in satisfaction of his demand against the defendant. If that be so, justice has been done, and the plaintiff ought not to recover on this order. The court are, therefore, of opinion, that a new trial ought to be granted, on payment of costs.
¶6New trial granted.