¶1The.bill of exceptions in this case seems somewhat confused. Why the plaintiff offered evidence that when Noble, the indorsee of his note, notified him of that indorsement, he expressed surprise, and said he thought he had a receipt, does not appear; or why he excepted to the rejection of it. The fact, if so, would seem to make against his case. But it has not been relied on in the argument.
¶2The direction of the judge that, upon the facts as they appeared, the plaintiff was not entitled to recover, was, in our opinion, correct. It appearing that, when Loomis gave to Sacket the receipt for fifty dollars, he held Sachet’s note for fifty dollars, dated August 28th 1848; and there being no evidence that he held any other note; the conclusion of fact would be, that the terms “ his note,” in the receipt, referred to the note of the 28th of August, as if it had been thus specifically described. Then what is the effect of the receipt ? The words “ to be applied on his note,” are equivalent to the words “ applied in payment,” or “ received in payment,” and operated by way of discharge of the note, in whole or pro tcmto, as it was, or was not the full amount. There was no promise, stipulation or executory undertaking to *150indorse it on the note. The principle on which this distinction rests is fully stated and explained in the case of Jordan v. Phelps, 3 Cush. 547.
¶3The remedy of Sacket was, when called on by Noble, as indorsee of Loomis, to rely on his receipt as a discharge and extinguishment of the note. This note being payable on demand, by the express provisions of St. 1839, c. 121, § 1, Sacket, the maker of the note, had the same right to use this payment as a defence against Noble, the indorsee, as he would have had against the payee.
¶4Exceptions overruled.