McCrary v. Carrington , 35 Ala. 698 ( 1860 )

R. W. WALKER, J.

In ordinary cases, the only effect which the giving, by a debtor, of his bill of exchange for a pre-existing debt, has upon such debt, is to suspend the creditor’s remedy upon it until the maturity of the bill. Such a bill does not, in the absence of an agreement to receive it as payment, amount to a satisfaction of the original debt, unless the debtor has been injured by the laches of the creditor who receives it, or unless the bill has been transferred by the creditor, and is outstanding in the hands of a.third person. — Mooring v. Mobile Marine Dock Co., 27 Ala. 254; Dorrance v. Jones, 27 Ala. 630; Byles on Bills, 303, and note (1), 307; Tarleton v. Allhusen, 2 Ad. & Ell. 32; Parsons’ Merc. Law, 82; Cocke v. Chaney, 14 Ala. 65.

In the present case, it does not appear that there was any agreement to receive the bill in satisfaction of the original debt; and it is shown that the creditor has not transferred it, and that the debtor sustained no injury by reason of the failure of the plaintiff to present the bill for payment at its maturity. This suit having been commenced after the bill fell due, and the complaint containing the common money counts, the plaintiff was, upon the whole evidence, entitled to recover, and the court did not err in so instructing the jury.

The bill was produced on the trial as part of the evidence, and a recovery by the plaintiff was an extinguishment of it, as well as of the original debt for which it was given. — Butler v. Miller, 1 Denio, 407. The formal surrender and cancellation of tlie bill were, therefore, unnecessary.

Judgment affirmed.