#### Samuel Wales and Abijah Erwin ex’rs. of William Erwin v. John Cooke.

From Iredell.

The holder of a note payable in specific articles, is not bound to receive them at a place, or on a day different from that appointed in the note.

IF such a note be assigned as collateral security to a bond, and the as-signee make a new contract with the maker, the note becomes his own, and all parties to the bond are discharged.

Debt upon a single bond, executed by the Defendant as surety of one Muer Carmichael, payable to the Plain* tiffs’ testator.'

The only defence relied on was the' plea of payment ; and upon the issue joined on that plea, the Defendant provpd that Carmichael, the principal debtor, had assigned the following instrument to the testator in his life-time:

“ Ten months after date, I promise to pay A. Carmichael or bearer, “ $351 74, to he discharged in good whiskey, bar lead or castings, “ at the customary price given by wholesale, to be delivered at Reu- “ ben McDaniel's house where he now lives, for value received this “ 10th day of June, 1816.

« REUBEN McD ANIEL.”

It was contended by the Defendant, that the assignment of this obligation to the testator was absolute, and in payment of the bond. The Plaintiffs contended on the other hand, that their testator had received it only as a collateral security to the bond. The Defendant also insisted, that if the assignment was a collateral security for the debt, the testator had made it his own by his la *184 dies, and thereby discharged the bond on which suit was brought.

June, 1829.

Upon this point there was a contrariety of evidence — an offer by McDaniel to pay the note in castings, before it fell due, and at a distance from the place of payment, was proved $ to which the testator Erwin replied, that he had never dealt in that article, and had rather wait longer than take such a payment 5 at the same time he offered to make a discount, if McDaniel would pay in cash. It was also in proof, that the testator Erwin, came to the house of McDaniel the maker, the day the note became due, but was informed by him that he could not, on that day, make payment in any of the articles specified in the note, or in cash.

His honor Judge Donnexx instructed the jury that a day and a place being specified, when and where the note was payable, either in whiskey, bar lead, or castings, the creditor was not bound to receive the payment in any of those articles, before the day the note became due — and that the Plaintiffs should not be deprived of their claim on the note in suit, because Erwin, their testator refused to receive the castings before the day the note fell due. If however, they could collect from the evidence, that Erwin had entered into any arrangement with McDaniel, for extending the time of payment, or for his, (•McDaniel,') disposing of the castings, he thereby made the debt his own, and deprived himself of recourse to the Defendant on the note in suit.

A verdict was returned for the Plaintiff, and the Defendant appealed.

The case was submitted without argument, by Badger for the Defendant, and Devereux for the Plaintiffs.

Hall, Judge.

From an examination of the facts stated in this case, and the charge of the Judge thereupon, we are of opinion that the charge was correct, and that the rule for a new trial should be discharged.

Per Curiam. — Let the judgment be affirmed.