On the 6th of February, 1852, Dunklee, the defendant, leased to Straw the Union house for the term of two years and nine months, from the first day of that month. The lease of course would expire on the first day of November, 1854.

The rent of the house was to be $60 for the first four months, and then $180 a year, with the addition of twelve per cent, upon the amount of expenses and repairs to be made by Dunk-lee before the first of June.

*342Straw had assisted Dunklee in repairing the house to the amount of $852, and this sum was to be paid by the rent of the house upon the lease ; $60 of it cancelling the rent for the first four months, and the balance, with the interest thereon, to pay the rent to Dunklee quarterly as it fell due.

Thus stood the matter between Straw and Dunklee on the first of June, 1852. Dunklee was indebted to Straw in the sum of $792, and Straw had a lease of the premises until the first of November, 1854, the rent of which was to be paid quarterly by offsetting it, as it fell due, against an equal amount of Dunklee’s indebtedness. Straw could not call upon Dunklee for the amount due him, neither could Dunklee call upon Straw for cash for the rent. The rent and indebtedness were to cancel each other.

Such we understand to have been the position of Straw and Dunklee towards each other up to January 31, 1853, when Dunklee let Straw have the $300. In the meantime Straw, by the permission of Dunklee, had let the house to Stevens, and Stevens was paying Straw the rent therefor.

On the 31st of January, 1853, Dunklee let Straw have $300, having borrowed the money of Bean and given his note for the same; and Straw gave Dunklee his three notes for $100 each, and as security for the same assigned to Dunklee the lease, with the condition that the assignment should be void if Straw should pay the notes in three, six and nine months. This transaction was entirely independent of the original contract between Straw and Dunklee, and has the same legal effect between them as though Straw had made the arrangement with a third person.

On the 9th of February, 1853, nine days following the advancing of the money by Dunklee to Straw, and the assignment of the lease, Straw drew the order which forms the foundation of this suit. This order is in the alternative, and our construction of it is this : for Dunklee to pay out of the rents to be received of Stevens, first, himself the $300 and interest on the same; and then $370 to the plaintiffs, or so much as there should be left on the lease after the payment of the $300 and interest, *343whatever the amount might be ; or else give up the lease to the plaintiffs. It was at the option of Dunklee to pay the balance of the rents over and above his $300, or to surrender the lease. And this order he accepted, and thereby bound himself to a compliance with its terms. He was first to satisfy himself for the $300, and was then bound to pay over the balance of the rents, as they should fall due, to the plaintiffs, or give them the lease.

Soon after the acceptance of this order the plaintiffs took up the Bean note, and by an agreement between them and Dunklee they received the accruing rents from Stevens, and applied them to the payment of the note; and the payment of that note was to cancel the notes held by Dunklee against Straw for the $300. This agreement having been understandingly entered into by the parties interested and competent to make the same, disposes of all questions in regard to the notes. They were paid ; both the Bean note and Straw’s notes. The rents were received and paid the Bean note, and the payment of that was to be ipso facto payment of the others. These notes having been paid, cannot be revived, and may be laid out of the case, so far as any recovery or off-set can be had upon either in this suit. They ought to have been surrendered; the Bean note to Dunklee, and the Straw notes to him.

The Straw notes being paid, the balance of the rents or the lease belonged to the plaintiffs; and Dunklee was liable to pay over the rents to them, or assign to them the lease. Without any definite agreement to that effect, it appears from the case that Dunklee retained the lease, but the plaintiffs continued to receive the rents until August 1,1854 ; three months before the termination of the lease. This course was desired by Dunklee, and acquiesced in by the plaintiffs. On the first of August, 1854, Dunklee ordered the tenants to attorn to him, and no rent has since been paid to the plaintiffs. The whole amount of the rents to the expiration of the lease would not be enough to pay the $300 and interest, and the $370, the amount of the order.

As we view the case, then, the whole controversy is narrowed *344down to the rent of the last three months, and for that we think the defendant is liable in this suit. The action was not commenced till after the lease had expired, and not till after the defendant must be presumed, in the absence of evidence to the contrary, to have received the rent. By the acceptance of the order, he had agreed to pay the balance of the rents after ■the Straw notes were satisfied, or assign the lease. The statement by the defendant that he did not want to give up the lease, and that the plaintiffs should have the rents just the same, and then acquiescence in this course by receiving the rents thereafter, may be regarded as an election by the defendant to pay over ■the rents instead of surrendering the lease, and of the plaintiffs’ consent thereto.

For the last quarter, therefore, the defendant is liable. What that amount shall be the plaintiffs have themselves determined. They demanded and received of Stevens $75 a quarter, and they can demand of the defendant no more. For that sum, with interest from the date of the writ, the plaintiffs should have judgment. The amount of rent to be paid by Straw to Dunklee is a matter between them and the defendant upon Dunklee’s lease to Straw. The rent to be paid by Stevens to Straw was what was in controversy between the parties to this suit; for one quarter of which only is the defendant liable.

It was not necessary for any special demand to be made upon the defendant for the payment of the $75. He had accepted the order, and the legal effect of the acceptance was to pay the rent as fast as received, after the payment of the $300. The liability has become fixed by the acceptance, and it is a general rule that where there is a precedent debt or duty, no demand need be shown before action brought; it being the duty of the debtor to seek out his creditor and tender him the money. Birks v. Trippet, 1 Saund. 33; Carter v. Ring, 3 Camp. 459; Coke Litt. 210, b, note 1; Chitty on Bills 249.