Waydell v. Luer. upon a good consideration, the creditor will be bound by his agreement, and must lose what he has agreed to surrender. Under the testimony in this case, I think the jury would have been authorized to find that the note of a third party was deliv ered by Cort to the plaintiff, and that the latter agreed to accept that note, together with the notes of Cort and the cash paid, in "settlement" or satisfaction of the copartnership debt, and that the copartnership note was, at the same time, given up to be cancelled. If these facts had been so found by the jury, no recovery could have been had against the plaintiffs in error. The judge, therefore, should have charged as requested upon these points. Upon the important question discussed in the opinion given. by the supreme court in this case, to wit, whether the agreement between Cort and the plaintiff would have discharged the firm indebtedness, provided the note of a third person had not formed a part of the consideration for that agreement, I concur in the conclusion to which that court came, that the original liability of the whole firm would, in that case, have remained unchanged by the agreement. Had the demand been against Cort alone, instead of being against the firm of which he was a member, it is well settled that the payment of a part of the debt in cash and the giving of his own note for the balance would not have discharged the former indebtedness, or barred a suit on the original consideration, after the expiration of the credit given by the new note, for the reason that there would have been no consideration, in that case, to support such agreement. I can see no better consideration to support an agreement to discharge a debt against a firm upon receiving therefor the note of one of the members of such firm. The security of the creditor can, in no court, be increased by such substitution; nor can I see that the partner who thus assumes the payment of the debt, can be injured thereby. In either case, he is liable for the whole amount of the debt, and it can make no difference with him, whether his liability be joint or several. His entire property is, in both cases, equally holden for its payment. If such an agreement were valid, the partner who should discharge a firm debt by Waydell v. Luer. giving his individual paper therefor, might obtain the advantage of being able to enforce contribution from his copartners before any actual payment was made by him. The right to enforce contribution accrues on the payment of the copartnership debt by a member of the firm; and if the giving of his own note in pursuance of an agreement to that effect between himself and the creditor, be held to constitute such payment, the right would vest when this should be done. As to the creditor, on the other hand, while he would lose the advantage which he might derive from having a claim against all of the persons composing the firm, he could not thus acquire the right of a prior equitable lien upon the assets of the individual partner as against the other creditors of the firm. Such other creditors, not being parties to the arrangement for the substitution of an individual indebtedness in place of the copartnership liability, could not, in case of the insolvency of the individual partner, be thus foreclosed from the right to come in upon equal terms with the holder of such substituted security, upon a distribution of the assets of the individual partner among his creditors. On the ground first stated, however, I think the judgment of the supreme court should be reversed and a venire de novo awarded. JOHNSON, Senator, also delivered a written opinion, in which he took the same views of the case and arrived at the same conclusion which Senator Talcott had done. HAND, Senator, delivered an oral opinion concurring substantially with the opinion of Senator Talcott. VAN SCHOONHOVEN, Senator, delivered a verbal opinion in favor of affirmance, agreeing in substance with the positions taken in the opinion delivered in the supreme court. GARDINER, President, delivered an oral opinion in favor of reversal, upon the grounds taken in the opinion of Senator LOTT. Henschel v. Mahler. On the question being put, "Shall this judgment be reversed?" the members of the court voted as follows: For reversal: The PRESIDENT, and Senators BACKUS, DENNISTON, EMMONS, HAND, JOHNSon, Jones, Lott, Sanford, J. B. SMITH, TALCOTT and Wheeler-12. For affirmance: Senators DEYO, HARD, PORTER, S. SMITH and VAN SCHOONHOVEN-5. Judgment reversed. HENSCHEL vs. Mahler & Mahler. A negotiable bill of exchange or promissory note must be for a fixed sum, and must be payable in money, and the time of payment must be such that it will certainly arrive; though the day of payment may depend upon a contingency. Per WALWORTH, Chancellor. A bill payable at the drawee's place of business on a day certain, or in another city at a later day, is a valid bill of exchange. Per WALWORTH, Chancellor. Such a bill is dishonored by the failure of the acceptor to pay on either day, at the place designated. Per WALWORTH, Chancellor. Assumpsit on the money counts will lie by the endorsee against the acceptor of a bill of exchange. Per WALWORTH, Chancellor. 66 In an action by the endorsees against the acceptor of an instrument bearing date Leipsic, April 18th, 1839," and drawn thus: "For fr's 8755-60, pay'ble &c. on the 31 Dec❜ber 1839. On the 31st Oct. of this year, pay &c. to the order of ourselves 8755 francs 60 cts., payable in Paris, the 31st Dec. of this year," &c. HELD a valid bill of exchange, notwithstanding the ambiguity as to the time of payment. The bill may be construed as payable at New-York on the 31st October, or at Paris at the subsequent day named, at the option of the acceptor. Semble. Per WALWORTH, Chancellor. The words" on the 31st Oct. of this year" should be rejected as repugnant. Per PORTER and SPENCER, Senators. ON error from the supreme court. J. R. & H. Mahler sued Henschel in the superior court of the city of New-York in assumpsit, and sought to recover as the endorsees, against the defendant as acceptor, of a bill of exchange. There was a verdict Henschel v. Mahler. and judgment for the plaintiffs, which was affirmed on error in the supreme court, upon which the defendant brought error here. The facts appearing on the trial are stated in the opinion of the chancellor, and, together with the opinion given in the supreme court, may be found in the report of the case in 3 Hill, 132. W. W. Van Wagenen, for the plaintiff in error. D. D. Field, for the defendants in error. THE CHANCELLOR. The defendants in error, J. R. & H Mahler, were the endorsees of a bill of exchange, drawn by Dufour Brothers & Co. at Leipsic, in the kingdom of Saxony, in April, 1839, payable to their own order, directed to Henschel, the plaintiff in error, at New-York or wherever he was to be found, and accepted by Henschel at Leipsic five days after the date of such bill. The bill is in the following form: Leipsic, April 18th, 1839. "For frs. 8755, 60 payable in Paris on the 31st of Dec'ber, 1839. "On the 31st of October in this year pay for this first of exchange to the order of ourselves, eight thousand seven hundred and fifty-five francs 60 cts. payable in Paris the 31st of December of this year, and charge the same to account as advised by "DUFOUR BROTHERS & Co. "To Mr. Alexander Henschel at New-York, or where to be found." The defence of usury which was attempted to be set up by Henschel on the trial, wholly failed. The only question therefore is, whether this instrument is upon its face a valid bill of exchange, according to the law merchant; so as to authorize the endorsees to maintain a suit thereon in their own names. For if upon its face it is negotiable, the acceptor could not be permitted to destroy its negotiability by extrinsic proof; especially in a case where he had no defence other than that the suit was brought in the name of the endorsees, instead of the Henschel v. Mahler. drawers, to whom the amount for which it was drawn was originally due. It is well settled in this state, as well as in England, that to make a promissory note or a bill of exchange negotiable, it must be payable in money, or at least that which is considered and treated as money by commercial usage. The amount to be paid must also be fixed and certain; and the question whether it is or is not to be paid must not depend upon a contingency or event which may never take place. But if the time of payment must certainly arrive, it is not necessary that the precise day of payment should actually appear upon the face of the bill or note, to render it negotiable. Thus in the case of Colehan v. Cooke, (Willes' Rep. 393, Strange, 1217, S. C.) a note payable ten days after the death of the maker's father was held to be a negotiable note within the statute. Such a note or bill is in this respect like a note payable a certain number of days after demand, or a bill payable a certain number of days after sight; which note or bill. is absolutely payable although the precise time when payment of the note will be demanded, or the bill will be presented for acceptance, may have been uncertain when the note or bill was drawn or negotiated. And if the true construction of the bill of exchange now under consideration upon its face is that the acceptor had an option to pay the bill at his place of business on the 31st of October, 1839, or at the city of Paris on the 31st of December thereafter, which is the construction most favorable to him, it is still a valid bill; and which authorized the endorsers thereof to sue in their own names upon his neglect to pay the bill, either at the one place or the other, at the respective times prescribed therein for payment. The declaration in this case also contained the common money counts, as well as the special counts upon the bill itself. So that if the endorsees had mistaken the true construction of the bill, and if it was a negotiable instrument upon any construction which could properly be given to its language, they were entitled to recover it of the acceptor under these common counts of their declaration, and the motion for a nonsuit was properly overruled. (Dimsdale v. Lanchester, 4 Esp. R. 202; Wild v |