¶1The defendant, as acceptor of the draft in suit, was the principal debtor, and although he accepted in the state of Indiana, yet it was a contract to be performed, in New. York, and is to be governed by the laws of that state. (Lee v. Selleck, 33 N. Y. Rep. 615.)
¶2The finding of fact that the bill was delivered to, and received by him, in payment and satisfaction of the bill not then matured, is not supported by the evidence. The delivery of a bill or note by a debtor, to his creditor, in payment of his debt, is not a satisfaction of the debt, unless it is expressly agreed between the parties that it shall be so received. (Murray v. Gouverneur, 2 John. Cas. 438. Herring v. Sanger, 3 id. 71. Tobey v. Barber, 5 John. 68. Putnam v. Lewis, 8 id. 389. Cole v. Sackett, 1 Hill, 516.)
¶3*37In this case there is no agreement on the subject. All we have is that the bill was delivered to, and accepted by, the plaintiff, and he understood it was received in payment. This is not enough. If the former bill had been surrendered, there might be some ground for holding the first bill paid. But even that is not shown to have been done. The plaintiff has no recollection of remitting the bill to the drawer; and on the facts proved I think the bill is even now in the bank of Madison, or in the custody of the plaintiff himself.
¶4It is too well settled to admit of doubt, even, at this day, that accepting a bill of note in payment of a precedent debt is not parting with value, so as to make the holder a bona fide holder for value. And not being such holder, the plaintiff is not entitled-to recover, in this. case. The acceptance is found to have been obtained by fraudulent representations; and this fraud is a bar to a recovery by any person not being a bona fide holder for value.
¶5The judgment should be reversed, and a new trial granted; costs to abide the event.
¶6Sutherland, J. concurred.
¶7It has been repeatedly held, from the time of the decision in Coddington v. Bay, (20 John. 637,) in this court and in the Court of Appeals, that before the holder of negotiable paper can acquire a better title to it than that possessed by the person from whom he received it, he must pay a present valuable consideration for it; and that receiving it in payment, or as security for, an antecedent debt, is not such a consideration. In Cardwell v. Hicks, (37 Barb. 458,) we decided, at the general term in this district, where a holder of a note received it partly in payment of a debt, and partly for cash, which he paid to the person from whom he received it, that he could only recover against the maker for the amount of the cash, and not for the amount of the antecedent debt. In Youngs v. Lee, (2 Kern. 55I,) the *38Court of Appeals held that a person who receives accommodation paper and surrenders the note of the person from whom it is received, before such note is due, is a bona fide holder for value, This latter case necessarily implies that where the antecedent debt is evidenced by negotiable paper, not surrendered, the person who receives the new paper is not deemed a bona fide holder for value, In the case before us, the court below finds only that the bill was received by the plaintiff in payment and satisfaction of a previous bill for about the same amount. The judge does not find that the previous bill was surrendered; and, indeed, there is no evidence in the case to that effect.
¶8I repeat, it is not enough that the new paper should be received in payment and satisfaction of the old. To entitle the holder to recover, the latter must be absolutely surrendered, before it is due, to the person from whom he receives the new.
¶9The judgment should b,e reversed, and a new trial ordered; costs to abide the event.
¶10Judgment reversed.
¶11Sutherland, Clerke and Geo. G. Barnard, Justices.]