Stewart

(after stating the facts as above).

The writ of error presents the question of law whether, upon the facts proven under the issues, it is shown that the indebtedness of the plaintiff in error to the Construction Company had been paid or satisfied. There is no evidence of an agreement between the parties that the notes were received as payment of the debt. In the absence of such an agreement, the common-law rule prevails in nearly all of the states and is adopted in the federal courts that the original demand is not paid or extinguished by the note. Peter v. Beverly, 10 Pet. 532 , 9 L.Ed. 522 ; U. S. Bank v. Daniel, 12 Pet. 32 , 9 L.Ed. 989 ; Lyman v. Bank of the United States, 12 How. 225 , 13 L.Ed. 965 ; Downey v. Hicks, 14 How. 240 , 14 L.Ed. 404 ; Atlas S. S. Co. v. Columbian Land Co., 102 F. 358 , 42 C.C.A. 398 . Nor is there any evidence other than the recital in said resolution of the trustees that the notes which were produced in evidence were ever delivered to the Construction Company. They purport to have been executed at Montreal; but it is evident that the maker could not have been at Montreal, Canada, at the time of their execution. The bill of exceptions describes…