¶1We cannot distinguish this case from Dewey v. Bell, 5 Allen, 165. The note of November 14 was given for no other purpose than to renew and pay the one of earlier date now in suit. The plaintiff, knowing this fact, had no right, as against this defendant, to take it except in payment. Having elected to take it and enforce it by suit, the law conclusively presumes that he took it for a rightful and not an illegal and fraudulent purpose, and the plaintiff is estopped from alleging the contrary. It is plain that both notes cannot be enforced rightfully against the present defendant. The plaintiff must fail in one of the two pending actions. If the acceptance of the second note be not treated as payment of the first, by a negotiation of the second to a bona fide holder for value before maturity, the defendant might have been rendered liable on both. To avoid this unjust result, and prevent the plaintiff from accomplishing a successful fraud to the injury of an innocent person, the just and equitable principle of estoppel is invoked, and the plaintiff is held to be forever bound by that construction of the transaction according to which alone it was rightful. Deweyv. Bellis precisely like the present case, with this exception: there the negotiation of the note given in payment had actually taken place. The commencement of a suit on the renewal note is an equally decisive act of election to make it the plaintiff’s own, and, in this case as much as that, the plaintiff “ is estopped to say he did not accept it for the purpose for which it was made.”
¶2Exceptions overruled.