#### Elliot Higgins *versus*Henry Packard, Scott Ficket, Francis Ficket, and John W. Russell.

In an action of assumpsit against several joint owners of a ship, for work and labor performed in rigging her, it appeared that the plaintiff had taken the promissory note of *one*of the joint owners, payable sixty days after date, for the amount of his bill, and given him a receipt in full of all demands up to a certain date. The Judge charged the jury, that the taking of the note, under the circumstances of the case, was not a discharge of the plaintiff’s claims against the other owners, unless it was taken in fact, *as payment,*and with the intent to discharge the other owners. Held, that this charge was correct in point of law.

This is the same cause which was formerly before the court, upon a case made, *[ante, p.*226.] The court on that occasion, gave judgment for the defendants, but, by an arrangement of the parties, it was again brought before the jury, and tried at the last July term before Mr. Justice Oakley.

The evidence introduced at the second trial did not differ materially from that produced on the former occasion, and it is not therefore recapitulated here. The Judge charged the jury that the written evidence of title, exhibited by the defendants, was not conclusive in the cause to fix the time when *Packard’s*ownership began. That such ownership might have existed previously to the date of the bill of sale. That it was for the jury to say, from all the circumstances of the case, whether he was interested in the ship at the time the work and labor were performed. If they found this to be the case, then that their verdict would he for the plaintiff, unless he had by some subsequent act *548discharged Packard from his liability. That the taking of Russell’s note, by the plaintiff, was not such an act, unless he took it in fact *as payment,*and with the intent to discharge the other owners, or had been guilty of negligence in obtaining payment of Russell. \ That as Russell was proved to be insolvent at the time the note was given, it did not appear to him that the plaintiff had been guilty of any culpable negligence, but the jury were to judge under all the facts of the case.

The jury returned a verdict in favor of the defendants, and the plaintiff now moved for á new trial upon the ground, I. that the Judge erred in charging the jury in. substance, that the note of Russell was a discharge of the other part owners, if they should find that the plaintiff" had taken it as payment, and with such intent. II. That the verdict was against evidence.

The cause was argued by *Mr. Anthon*for the plaintiff,

(who cited 5 *J. R.*68. 1 *Cowen’s R.*304. 17 *J. R.*340. *Gow on Part. 18, 19,)*and *Mr. Talman*for the defendants. The latter cited 5 *J. R.*68. 12 *Ib.*409, *[Arnold v. Camp.)*5 *Esp.*Rep. 122.

Oakley, J.T

his action was brought to recover of the defendant, *Packard,*as one of the owners of the ship *Russell,*the amount of a bill for rigging that vessel. The question whether *Packard*was interested in the ship at the time the work was done, was fairly left to the jury, and their verdict on that point must be conclusive ; and the more so, as it seems to me to be supported-by the weight of the evidence.

It appears, that after the work was performed, the plaintiff took the note of one of the owners of the ship for the amount, and it was contended at the trial, by the defendant, *Packard,*that the taking of the note; under the circumstances, was a discharge of the plaintiff’s claims against the other owners. The Judge told the jury, that it was not, unless they should be satisfied, that the plaintiff" had taken it *“in fact as payment, and with the intent to “discharge the other*owners.” The plaintiff now complains that here was error in this direction.

*549It might be sufficient to say, that no objection to the Judge’s charge was intimated at the trial. But it appears to me, on further reflection, that the charge was correct.

In *Arnold v. Camp.*[12 *J. R.*411,] the S.C. after reviewing several of the cases on this subject, lay down the rule to be, that if the taking of anotéis *“intendedandagreed tobe considered as payment'*of a pre-existing demand, the latter is thereby discharged. The direction of the Judge, in the case now' before us, is entirely in conformity with this rule, and indeed goes beyond it, in favor of the plaintiff. The jury were told, that they must find not only that the note in question was taken in fact as payment, but that the plaintiffintended thereby to discharge the other owners. This was certainly equivalent to telling them that they must be satisfied that it was *intended and agreed*by the .parties, that the note should be considered as payment; and the plaintiff has no right to complain of the charge of the Judge in this respect.

*Motion for a new trial denied.*

[E. Anthon, *Att’y for the plff.*Hoffman & Talman, *Att'ys for*Packard.]