by John Marshall Harlan

“ In The Kimball, 3 Wall. 37, 45, the court said that 'by the general commercial law, as well of England as of the United States, a promissory note does not discharge the debt for which it is given, unless such be the express agreement of the parties; it only operates to extend until its maturity the period for the payment of the debt. The creditor may return the note when dishonored, and proceed upon the original debt. The acceptance of the note is considered as accompanied with the condition of its payment.' These cases show the course of decision in this court. ”

“ The instructions and the charge mean that if the sale was an unconditional one, and if the notes were given and accepted as absolute payment, the original debt was extinguished, and the remedy of the defendant was on the notes. There was in this no error to the prejudice of the defendants; for the facts thus hypothetically stated to the jury imported a special agreement between the parties that the notes were to be taken in payment. ”

“ The defendant, however, insists, and introduced evidence tending to show, that the sale was conditional upon the payment of the notes at maturity, it being agreed between the plaintiff and Babb that the title to the cattle should remain in the latter until the notes were paid, and that if not paid when due he might assert his title and resume possession of the cattle. After the cattle were secured by the plaintiff he drove them from the range in Texas, upon which they had been found by him, into Lincoln county, New Mexico. ”