COURT OF APPEALS.

#### Calvin Day and others, appellants agt. Thomas P. Saunders, respondent.

Where a party takes negotiable paper before its maturity, in payment of a debt. *ppst due,*it constitutes him a holder for value.

Consequently, where the plaintiff held four notes of the maker—two of which were not due and two past due, on receiving an indorsed note of the same maker in payment for the full amount of the four notes, *held,*that the evidence as to the indorsed note being received in payment of the two notes past due, being precisely the same that it was in regard to the notes not dne, the plaintiff was entitled to recover the full amount of the indorsed note—the note in suit—being the amount of the four notes.

*January*Term, 1867.

Appeal from a judgment of the supreme court, at general term, affirming a judgment at special term, upon a verdict rendered for plaintiff for part of his claim upon a promissory note.

Pomeroy *and*Southworth, *for appellants.*

Brown *and*Beach, *for respondent.*

Davies, Ch. J.

On the 2d of November, 1859, the plaintiffs were the owners and holders of four promissory notes made by one J. H. Whipple. The whole amount due thereon for principal, interest, and protest fees, was on that' day $1,031.25. Two of the notes were over due, uoon which suits had been commenced by the plaintiffs against Whipple, and on the said 2d of November, plaintiffs agreed to accept Whipple’s note for the amount of said four notes, at forty-five days, to be indorsed by the defendant Saunders. On the 22d of November, 1859, plaintiff’s attorney received the note in suit indorsed by Saunders, delivered up to Whipple his four notes, and Whipple paid said attorney’s *535costs incurred in the two suits, on the two over due notes of Whipple, amounting to the sum of $24.92, and gave a receipt therefor in these words: *“*Received payment November 22, 1859, and suit discontinued.” Saunders indorsement had been obtained in blank, and to be used for a different and another purpose. On the trial, the court held, that the plaintiffs were only entitled to recover to the extent of the amount of the two notes of Whipple, not due, at the time of the delivery of the note in suit to them, and that said plaintiffs were not *bona fide*holders of the note in suit, for the value or amount of the two notes of Whipple,which were over due. The plaintiffs had a verdict for the amount of said two notes not due, amounting to $239.65, which judgment on appeal to the general term was affirmed, and the plaintiffs now appeal to this court.

The supreme court was clearly correct in holding that the plaintiffs were entitled to recover against this defendant upon the note in suit, to the extent that they were *bona fide*holders thereof.

In *Van Duzer*agt. *Howe,*(21 *N. Y.,*531) this court decided that a party who entrusts another with his acceptance in blank is responsible to a *bona Ode*holder, although the blank be filled with a sum exceeding that fixed as a limit by the acceptor. But the court erred in holding that the plaintiff's were not *bona fide*holders of the two notes, over due, for the payment of which, the note in suit was equally received, as for the two notes not then due. The facts are indisputable that the note in suit was transferred in payment of the four notes of Whipple then held by plaintiffs. The facts in this case are not distinguishable from those presented in *Brown*agt. Leavitt, (31 *N. Y,*113). It was then stated, that the note in suit in that case was indorsed and delivered by persons composing the firm of Zebley & Co. to the plaintiff’s testator, before it fell due, in payment, so far as it went, of a larger note then held by the testator and over due. It was received with other notes, and a bal*536anee in cash as such payment of the larger note, delivered up to Zebley *&*Co. We then said: *“*In this state it is settled by abundant authority that this transaction constituted the plaintiff’s testator a holder for value of the note in question. A further discussion of the question might lead to a suspicion, that the law was in doubt on the point.”

The judgment should be modified by increasing the amount of the verdict from $239.65 to the amount due upon the four notes, at the date of the verdict, and that judgment for that sum and interest thereon be affirmed, with costs.

If the parties cannot agree upon Such amount, then the supreme court is directed to ascertain the same, and render judgment for the plaintiffs, with costs, accordingly.

Grover, J.

The exception taken by plaintiff’s counsel, upon the trial to the charge of the judge as given, and to the refusal to charge as requested, present the only real question in the case. That question is whether a party taking negotiable paper before maturity, in payment of a debt past due, constitutes a holding for value. This precise question was decided affirmatively in *Brown*agt. *Leavitt, (31 N. Y.,*113), by this court. In *Young*agt. *Lee (2 Kern.,*551), the like rule was applied when the debt for which the note was taken had not become due. It is manifest that there is no distinction in principle between a case when the debt is due and when not due. These cases should put an end to the question in this state. The counsel for the respondent insists that the rule cannot apply to a case when the debt is due, for the reason that a new promise by a debtor does not satisfy or extinguish an existing debt. He overlooks the reason for the latter rule, that is, that .such new promise is no consideration for an agreement to discharge the debt. It is nothing more than promising to do what the debtor is already bound to do.

In the present case there was a consideration, viz: the *537additional security of the defendant’s indorsement. The. evidence in the present case proved that the note in suit was taken in payment of the four notes given up. The court so held as to the two small notes not due. The evidence as to the note in suit being received in payment of the notes past due was precisely the same that it was in regard to the notes not due, and the judge should have gone further, and upon the evidence, directed a verdict for the plaintiffs for the amount of the note in suit, that being the amount of the four notes for which it was given.

The judgment must be reversed and a new trial ordered, costs to abide event.

Reversed.