Foote was the maker of a note payable at a bank, upon which one Scudder was indorser. Several days before the note fell due, Foote took the check of Scudder, for the amount of the note, to the bank, and offered it in payment of the note. The account of Scudder was then overdrawn several thousand dollars, and the cashier declined then to receive the check, in payment, but said that he would pin the check to the note, and if, when the note fell due, the account of Scudder was made good, the check would pay the note — to which Foote assented.

When the note fell due Scudder’s account had not been made good, and nothing was done with either the note or the check —.neither was protested ; but within two or three days after the note fell due, Scudder made several deposits with the bank, which were more than enough to meet the check, although not sufficient to make up the deficit in his account. The cashier thereupon charged the check to Scudder in the books of the bank, and marked and credited the note as paid.

Scudder failed, and the bank then called upon Foote to take up the note, alleging that the check of Scudder had not been paid, and Foote, without any knowledge of the entries in the books of the bank, gave a new note for the original debt.

Held, that the first note was paid by the check of Scudder, and that as Foote had given the new note in ignorance of the fact that the bank had accepted the check in payment of the first note, such new note was without consideration, and void.

(S. C., 12 Barb. 209 ; 9 N. Y. 463; 10 id. 599.)