unable to obtain payment from him. There was a verdict for the defendants, by consent, subject to the opinion of the court upon the foregoing facts.

J. C. Chamberlain, for the plaintiff.

Ainsworth and Wilson, for the defendants.

By Court, WOODBURY, J. It seems to be well settled that if a creditor agrees to accept the promissory note of his debtor, or of a third person, in satisfaction of a simple contract debt, the debt is extinguished: Clark v. Mundell, 1 Salk. 124; Vernon v. Boverie, 2 Show. 303; Kearslake v. Morgan, 5 T. R. 510; Sheehy v. Mandeville, 6 Cranch, 253; Wiseman v. Lyman, 7 Mass. 286; Whitbeck v. Van Ness, 11 Johns. 409 [6 Am. Dec. 383]; Smith v. Wilson, Andrews, 187, 228. But such an agreement is not binding if the creditor is induced to enter into it by the misrepresentations of the debtor: Willson v. Foree, 6 Johns. 110 [5 Am. Dec. 195]; nor if the note received turn out to be forged: Markle v. Hatfield, 2 Johns. 455 [3 Am. Dec. 446]; or of no value, unless the creditor specially agreed to take the risk: Puckford v. Maxwell, 6T. R. 52; Stedman v. Gooch, 1 Esp. Cas. 5; Owenson v. Morse, 7 T. R. 64; nor if it be void for want of a stamp: Wilson v. Kennedy, 1 Esp. Cas. 245; 1 East, 58, in notes. Nor will the agreement be binding when the note turns out to be of no value, although the creditor took the risk, if the debtor knew it to be of no value, and the creditor did not: Chitty on Bills, 119.

In some cases, the note of a third person received by a creditor, becomes by his negligence a satisfaction of the debt, without any special agreement; as when he neglects to use due diligence to obtain it of the maker, and the maker fails: Chamberlyn v. Delarive, 2 Wils. 353. The note of the debtor will also become a satisfaction without a special agreement, if the creditor transfers it to a third person: Harris v. Johnson, 3 Cranch, 311; Holmes v. DeCamp, 1 Johns. 33 [3 Am. Dec. 293]; Clark v. Young, 1 Cranch, 181. And if the creditor takes the note of the agent of the debtor, and gives a receipt, as for money due from the principal, in consequence of which the debtor deals differently with the agent, on the faith of the receipt, from what he would otherwise have done, the debt is discharged: Wyatt v. The Marquis of Hertford, 3 East, 147. If a person who supplies stores to a ship, of which there are several owners, takes in payment the bill of the ship's husband, who is part owner, and settles with him alone, he thereby discharges the

other owners: Reed v. White, Esp. Cas. 122; Schemerhorn v. Loines, 7 Johns. 311. So if two partners give a joint bill of exchange for a partnership debt, and the holder, after the partnership is dissolved, takes the separate bill of one, the other is discharged: Evans v. Drummond, 4 Esp. Cas. 91. And if a debtor deposit money for his creditor with a third person, and the creditor assents thereto, and gives the depositary a new credit on the footing of such deposit, the original debtor is discharged: Swift v. Hathaway, 1 Gall. 417; 3 T. R. 180.

If a person sells goods and pays money, and at the same time receives therefor the note of a third person payable to himself, or any note or bill not having the name of the person with whom he deals upon it, it will be presumed to be a sale of the note, and to be in satisfaction until the contrary appears: 15 East, 11; Whitbeck v. Van Ness, 11 Johns. 409 [6 Am. Dec. 383]; 1 L. Raym. 442; 12 Mod. 241, 408, 203, 517; 3 Johns. Cas. 72 [2 Am. Dec. 144]; 5 Johns. 68 [4 Am. Dec. 326]; 1 Salk. 124; 6 Mod. 36. The rule is, however, different when such note is received for a precedent debt. But if the creditor receive the note or bill of his debtor, or of a third person indorsed by the debtor, either for a precedent debt or a debt arising at the time, it is not presumed it has been received in satisfaction: Chitty on Bills, 109; Holmes v. De Camp, 1 Johns. 33 [3 Am. Dec. 293]; Tapley v. Martins, 8 T. R. 451. Thus, it is apprehended, stands the common law on this subject.

The supreme court of Massachusetts have, however, decided that a negotiable note is always to be presumed to have been received in satisfaction until the contrary appears: Thatcher v. Dinsmore, 5 Mass. 302 [4 Am. Dec. 61]; Chapman v. Durant, 10 Id. 47; Manceley v. M'Gee, 6 Id. 143 [4 Am. Dec. 105]. This rule is believed to be peculiar to Massachusetts, and renders some of their decisions irreconcilable with the decisions in other states and in England. The rule, however, seems not to be inconvenient in itself, although it may well be doubted whether it possesses any advantage over the rule laid down in 3 Cranch, 311. Perhaps the only objection to it is, that it is an unnecessary departure from the common law. And if an uniformity of decision in the courts of the several states, upon common law questions, is of any importance, this objection is certainly entitled to some consideration. But whether this rule has ever been adopted in this state, or whether it is expedient now to adopt it, are questions which it is unnecessary to settle in this case, as we are clearly of opinion that this cause

comes within the principles laid down in Wyatt v. The Marquis of Hertford, 3 East, 147.

The plaintiff accepted the note of Dakin for the amount of this demand, by which the defendants were induced to leave in the hands of Dakin sufficient to pay the note. Dakin has become insolvent, and if the plaintiff can prevail in this action the defendants will, in effect, be compelled, not on account of any default or neglect on their part, but by the act of the plaintiff, to pay the debt twice. This would be most manifestly unjust, and there must be judgment on the verdict.

The exceptional doctrine is held in Massachusetts, Maine and Vermont, that the giving of a note for a pre-existing debt is prima facie a discharge of the debt: Thacher v. Dinsmore, 4 Am. Dec. 61; Maneely v. McGee, Id. 105; Holmes v. Smyth, 4 Shep. 177; 3 Parsons on Contr. 624. But the general doctrine is that the giving of such a note is not presumed to be payment, there must be an agreement that it shall be so considered, and this is the doctrine in New Hampshire: Jaffrey v. Cornish, 10 N. H. 505; Whitney v. Goin, 20 Id. 354, where it is held that if a creditor receive of his debtor, when the debt is contracted, the note of a third person, and indorsed by such third person, it will not be presumed to have been taken in satisfaction, and the principal case is followed.

In Hill v. Marcy, 49 N. H. 269, the authority of the case is recognized.

POOLE V. SYMONDS.

[1 NEW HAMPSHIRE, 289.]

TROVER BY BAILEE-Where an officer takes goods upon an attachment or execution, and delivers them to a third person for safe-keeping upon his written promise to return them on demand, such person has a sufficient interest in the goods to maintain trover for them.

TROVER for a certain mare. Plea, the general issue. At the trial it appeared that the mare in question being the property of one Ezra Flanders, was seized by Ziba Huntington, a deputy sheriff, upon an execution against the said Flanders in favor of one Noyes, on June 30, 1817. By consent of the plaintiff in the execution, and upon the request of Flanders, Huntington delayed the sale, and delivered the mare for safe-keeping to Poole, the plaintiff in this action, who gave Huntington a written promise to return her on demand. Poole kept the mare until August 8, 1817, when she was taken from his possession by the defendant, another deputy sheriff, upon an attachment against Flanders in favor of one Morse. It further appeared that Huntington had never advertised the mare for sale. Verdict for the plaintiff, and a motion for a new trial.

William Smith, for the defendant, contended that the plaintiff was the mere servant of the sheriff, without any legal interest, and, therefore, could not maintain the action, and cited Ludden v. Leavill, 9 Mass. 104 [6 Am. Dec. 45]; Warren v. Leland, Id. 265; Commonwealth v. Morse, 14 Id. 217. He also contended that on account of the failure to advertise the mare, as required by law, other creditors had a right to attach, and cited Caldwell v. Eaton, 5 Mass. 699.

Gilbert and J. Bell, for the plaintiff.

By Court, RICHARDSON, C. J. On behalf of the defendant it is contended that Poole has not a sufficient interest in the chattel in question to enable him to maintain this action, and several decisions in the supreme court of Massachusetts are relied upon as directly in point; and it is not to be doubted that if those decisions were correct this objection must prevail. But the decisions in this state have been different. In the case of Eastman v. Eastman, in the county of Hillsborough, December term, 1814, where the case was precisely like the present one, except that the article in question had been taken upon mense process in Massachusetts, and the plaintiff had become answerable for it to an officer there, the cases in the ninth volume of the Massachusetts reports were cited by counsel and considered by the court; but the court (Smith, C. J., and Livermore and Ellis, JJ.,) were clearly of opinion that the plaintiff might maintain the action. No authority is cited by the court in Massachusetts in support of their decision; nor is it recollected that the determination here was supported by authorities. We have, therefore, felt it to be our duty to reconsider the question, and endeavor by a careful examination of the adjudged cases which bear upon the point to ascertain what the real law of the case is.

No man can maintain trespass, trover, or replevin for personal chattels, without either an absolute or special property in the goods, and also possession. But this possession may be either actual or constructive. Thus, an executor is by construction of law possessed of the goods of the testator, and may maintain trover for them, although he has never been in actual possession of them: Hudson v. Hudson, Latch. 214. So where one had wreck by prescription or grant and another took it away, trespass or trover lay before seizure: F. N. B. 207. And if A., in London, gives J. S. his goods in York, and another takes them away before J. S. obtains actual possession, J. S. may maintain trespass or trover: 2 Saund. 47, note 1;

Bac. Ab. Trespass, C. pl. 9, 10. So, if the owner delivers his goods to a carrier, or other bailee, although in such case another has the actual possession, still the owner has by construction of law a sufficient possession to maintain trover or trespass: Chit. Pl. 48, 151; Thorp v. Burling, 11 Johns. 285. This constructive possession is not founded upon the mere right of property, but upon the right of possession. For if he who has the absolute property has not also the right of possession, he can have no constructive possession. Thus, where the owner of goods let them for a year, and they were taken away by a third person within the year, it has been held that he could maintain neither trespass nor trover: Ward v. McCarty, 4 T. R. 489; Gordon v. Harper, 7 Id. 9; Putnam v. Wyley, 8 Johns. 432. This constructive possession in one is by no means inconsistent with an actual possession in another. In many cases either he who has the actual or he who has the constructive possession may maintain trespass, trover or replevin; but a judgment in favor of one will be a bar to an action in favor of the other: 2 Saund. 47, note 1; 48 Edw. III. 20, pl. 8; 1 Chit. 48. In some cases, he who has only a special property may have a constructive possession. Thus a factor to whom goods have been consigned but have never been received, has such a constructive possession that he can maintain trover: 2 Saund. 47, note 1; 1 Bos. & P. 47, by Eyre, C. J.

A special property in goods may in some cases be founded founded upon mere possession. Thus he who finds goods which have been lost, has a special property in them, because possession is evidence of title: 2 Saund. 47, note 1; Armory v. Delamirie, 1 Str. 505; 13 Johns. 151. Thus, too, where goods were stolen from a stage coach, it was held that they were well alleged in the indictment to be of the goods or chattels of the stage coachman, although he was the mere servant of the owner of the coach, and not answerable for the goods: 2 East, 635; 1 Leach, 375.

A special property may also be founded upon a responsibility for, or an interest in, the possession of chattels. Thus he to whom goods are delivered merely to keep and re-deliver upon request, has a special property in them: 21 Hen. VII. 14, pl. 23, where it is said the point had often been decided: Jones on Bailments, 112.

That a sheriff who has seized goods upon mesne process, or upon execution, an agister of cattle, a carrier, factor, consignee, pawnee, trustee, etc., have a special property, admits of no