The opinion
Cope, J. delivered the opinion of the Court
Norton, J. concurring.
The defendant, being indebted to the plaintiff, drew a bill of exchange in his favor, upon a third person for a part of the amount. The bill was drawn on the fifteenth of October, 1861, and was payable on the twenty-third of the same month, but has not been presented for payment. The plaintiff sues upon the original indebted-mess,, and the defendant relies upon the bill as a discharge pro tanto.
IThe receipt of a note or bill on account of a preexisting indebtedness does not, per seL extinguish the debt. It operates, however, as a conditional payment; and if the payee of a bill so conduct himself as to release the drawer from liability upon it, he cannot maintain an action for the debt. Story, in his work on Bills, after *389 stating the obligations resting upon the holder in regard to presentment, says: “ A default in any of these respects will discharge the party in respect to whom there has been such default, and who otherwise would be bound to pay the same, from all responsibility on account of the non-acceptance or non-payment of the bill, and will operate as a satisfaction of any debt or demand for which it was given.” (Story on Bills, sec. 112.) The authorities cited by the appellant are to the effect that receiving the bill does not of itself extinguish the debt; which, of course, is a very different question from the one presented here. The plaintiff offers no excuse for his failure to present the bill, and, so far as it goes, the defendant is entitled to the benefit of it in discharge of the debt.
Judgment affirmed.