ties, is a discharge of every other party, who, upon paying the bill or note, would be entitled to sue the party to whom such discharge or time has been given; (a)

Unless the right to sue in such case result from facts out of ordinary course, as from the signatures being accommodation signatures.

And if the party who would be entitled to sue assent (21)

keep the original bill in his hands in the interim, as a security. He now sued the defendants as endorsers, and this was relied upon as a defence. Lord Ellenborough thought at the trial, that it did not amount to a giving time to the acceptor, and the plaintiff had a verdict; but upon motion for a new trial, he and the court were satisfied that it did, and a nonsuit was entered.

Laxton v. Peat, 2 Campb. N. P. C. 185. Endorsee of a bill against the acceptor. It appeared that the bill had been accepted for the accommodation of the drawer, which circumstance was known to the plaintiff, who gave value for the bill. When the bill became due, the plaintiff received part payment from the drawer, and gave him time to pay the remainder, without the concurrence of the defendant. Lord Ellenborough held, that this being an accommodation bill, within the knowledge of all the parties, the acceptor could only be considered as a surety for the drawer; and in the case of simple contracts, the surety is discharged by time being given, without his concurrence, to the principal. Nonsuit.

And see Rees v. Berrington, 2 Ves. Jun. 540. Rees became surety in a joint and several bond conditioned for the payment to the obligee, of a certain sum with interest by two instalments; the first on the 31st of December, 1789, and the second on the 31st of December, 1790. In September, 1790, the whole sum being unpaid, the obligee took promissory notes from the principal obligor, for payment of the debt by instalments at extended periods, which notes were afterwards exchanged for others payable at more distant days. This arrangement was without the knowledge of Rees. The principal obligor afterwards became bankrupt; and the executor of the obligee sued Rees, the surety. And on a bill filed for an injunction, the chancellor held, that the surety was discharged by this indulgence having been given without his consent to the principal. See also 2 Bos. and Pull. 62.

[(a) The law as stated in the text is recognised in many cases in the United States. Moodie v. Morrall, 1 S. Car. R. 367; Sharpe v. Bingley, 1 S. Car. R. 373; Scarborough v. Harris, 1 Bay, 177.

The holder of a note, after it became due, agreed with the maker for a consideration paid him, to wait ninety days without suing. It was held that the endorsers of the note were discharged by this agreement. Hubbly v. Brown, 16 Johns. R. 70.

But where the drawer of a bill on paying it would have no right to sue the acceptor, it seems that the discharge of the acceptor does not discharge the drawer. See Sargent v. Appleton, p. 225.]

(21) Clarke v. Devlin, 3 Bos. and Pull. 363. Atkinson, the acceptor of a bill, having been arrested by the holder, offered him a warrant of attorney for the amount of the bill, payable by instalments: this offer the holder mentioned to the defendant, the drawer, proposing to accept

to the giving time, or if, knowing of its having been given, he (22) promise to pay the bill or note, his liability will be continued in the former case, and revived in the latter; and it will make no difference in the latter case, though the promise were made under a misconception of the law, the party believing himself to be still liable, unless the holder is instrumental in raising that belief.

[It has been held that the drawer of a bill was not discharged by the holder's releasing the acceptor, where the drawer retained money on purpose to pay the bill. (a)

of it; who said, "you may do as you like, for I have had notice of the non-payment." In fact he had had notice. The court held that this amounted to an assent on the part of the defendant to the security being taken, and therefore that the defendant was not discharged by this indulgence to the acceptor.

(22) Stevens v. Lynch, 12 East. Rep. 38. The defence in this action, which was by an endorsee against the drawer of a bill, was, that the plaintiff had given time to the acceptor; in answer to which, it was proved that the defendant knew of such time having been given, but that, conceiving himself to be still liable, three months after the bill became due, he said to the plaintiff, "I know I am liable, and if Jones (the acceptor) does not pay it, I will." Upon this, Lord Ellenborough directed a verdict to be found for the plaintiff; and upon a motion for a new trial, the court held the direction right, and refused a rule.

[(a) In an action against Appleton, as drawer of a bill, it appeared that he was agent and supercargo of Smith, the drawee, in his brig Levant at Marseilles, and having in his hands a balance due to Sargent, the payee, for goods consigned to Appleton, and by him sold, and the proceeds invested on account of Smith. For this balance the bill was drawn and accepted by Smith, but payment was refused, Smith having become insolvent. Smith soon after, by indenture, to which the plaintiff was a party, assigned the Levant, and her earnings, and other property to his creditors, subject to the payment of any bills which Appleton had drawn or might draw on him, for the purchase of a cargo for the Levant. The creditors, in consideration of this assignment released Smith, the acceptor, from all demands. Appleton, the defendant, had retained sufficient property of Smith's for the purpose of discharging this bill. After this assignment, the defendant in letters to the plaintiff, expressed an intention of paying the bill, and acknowledged his liability; but he was forbidden to pay it by one of Smith's creditors, a party to the indenture. The plaintiff had received nothing under the assignment. Sewall J. directed a verdict for the plaintiff. Sedgwick J. giving the opinion of the court, said, "It is true as a general rule, that where the holder of a bill discharges the acceptor, all other parties are thereby discharged. The rule would apply in this case, if on a recovery against the defendant, he could maintain an action against Smith, the acceptor. But it is impossible this could be the case; for the bill would be paid by the defendant with money which belonged to Smith, and had been retained for the express purpose. It is the opinion of the court, that the direction of the judge was right." Sargent v. Appleton, 6 Mass. R. 85.]

The endorser of a note is not discharged, in consequence of discharging the maker, where it is done with the consent of the endorser, (a) or where the holder in making the discharge, expressly reserves all his rights against the endorser, and the endorser's rights against the maker. (b)

Where the holder of a note, after a suit brought against the endorser, released the maker by a writing not under seal and without consideration, it was held that the release was void, and was therefore no bar to the suit against the endorser. (c)

Where a bill is accepted, but dishonored by non-payment, receiving from the acceptor, as security, a new bill payable

[(a) Bruen and Sons were holders of a note made by Shelton and Beach, endorsed by Marquand. After the making of the note S. and B. assigned their property by indenture to Marquand and others, in trust for their creditors, and their creditors released all demands. One of the firm of Bruen and Sons became a party to this indenture on behalf of the partnership. Marquand was also a party as a creditor. The creditors in this instrument were divided into three classes, and those of the first class were to be first paid. In the schedule of the first class, was written, "Isaac Marquand endorsed to M. Bruen and Sons, 500 dollars." Bruen and Sons received a dividend under this assignment from Marquand and the other assignees. In an action by Bruen and Sons against Marquand as endorser, Van Ness J. delivered the opinion of the court. "The reason for holding the endorser discharged, by the discharge of the maker, certainly does not apply here, viz. that the remedy by the former against the latter is materially affected or taken away; because the defendant, who is a party to the assignment, not only as a trustee, but as a creditor to a large amount, as a creditor, released Shelton and Beach from their liability over to him, on this note. If the intention of the parties was to preserve the liability of the endorser, it was competent for them to do so. The intent of the parties clearly appears to have been that both the holders of the note and the defendant should set the makers free, but the remedy against the endorser should remain. It was, no doubt, for this reason that the debt in question was put in the first class. The makers intended to secure (as far as they could) their endorsers, as honorary creditors. As between the holders of this note and the makers, there was no reason for giving it a preference, but as between the makers and endorser it was otherwise." Bruen v. Marquand, 17 Johns. R. 58.]

[(b) R. and H. Stewart, holding a note made by Waring, endorsed by Eden, released Waring from all claims which they had against him on the note, "excepting always that he shall be responsible to the executors of Eden, deceased, and to them only;" and the same instrument declared that it was not to affect the claim of R. and H. Stewart against the said executors. It was held that this instrument was no bar to an action by R. and H. Stewart against the executors of Eden, the endorStewart v. Eden, 2 Cain. R. 121.]

ser.

[(c) Crawford v. Millspaugh, 13 Johns. R. 87.]

at a future day, does not discharge the drawer of the first bill, unless there is an agreement by the holder not to sue upon the first bill. (a)

So where the holder of a bill drawn by A and accepted by B, but protested for non-payment, drew a bill upon A and B jointly for the amount of the first bill and damages, which was accepted by B, but not by A, it was held that A, the drawer of the first bill, was not thereby discharged. (b) (c)] Release to payee of note, does not discharge the maker; (23)

Though the note were an accommodation note; (23)

Unless that fact were known to the releaser when he gave the release. (23) (d)

[(a) Pring v. Clarkson, 2 Dow. and Ryl. 78, 1 Barn. and Cres. 14.] [(b) Furse at New York drew a bill on Angove in England, which came by endorsement to Suckley. The bill was accepted, but was protested for non-payment, and returned to Suckley. He then drew another bill on Furse and Angove jointly, at sixty days' sight, for the amount of the first bill and 20 per cent. damages. Suckley sent this bill to his partner, Holey, in England. This bill was accepted by Angove, but not by Furse, and was returned to Suckley unpaid. Suckley then sued Furse upon the first bill. Yates J. delivered the opinion of the court. 66 Holey's act in taking the acctance of Angove alone, did not bind the plaintiff, and consequently could not discharge the liability of Furse as drawer of the original bill, on the ground of an agreement for an extension of the time of payment, or the giving of a new credit. No such agreement had ever existed between the parties. The new bill being for an existing debt, could not affect the original liability of Furse; for it is a settled rule of law, that a bill shall not be a discharge of a precedent debt, unless it be so expressly agreed between the parties." Suckley v. Furse, 15 Johns. R. 338.

[(c) Where the holder of a note sued the maker, and after issue joined took a relicta and cognovit, and gave the defendant a stipulation not to issue execution on the judgment to be entered on the cognovit, until a certain day, before which day, according to the course and practice of the court, he could not have brought the cause to trial, and obtained judgment, the court seemed to be of opinion that this was not such an indulgence or giving time, as would discharge the endorser. Hallett v. Holmes, 18 Johns. R. 28.]

(23) Carstairs v. Rolleston, 5 Taunt. 551. Assignees of first endorsee of note against the maker. Plea, that defendant made the note as surety for the payee, and not on his own account, and that plaintiff had released the payee from the note and from all claims and sums of money due thereon: there was no allegation that plaintiff knew that defendant was only surety, and on demurrer the plea was held bad, and plaintiff had judgment.

[(d) If the endorser of a note before it becomes due releases to the maker all actions, causes of action, and demands, which the former has

Agreeing after a bill has become due, and been regularly protested for non-payment, and notice thereof given, not to press the acceptor, will (24) not discharge the drawer. (a)

Nor will (24) receiving part of the money on account from an endorser.

[Receiving a partial payment from any party to a bill, or note, will not discharge any other party. (b)]

or may have against the latter, by reason or means of any act, matter, cause, or thing previously to the date of the release; if the endorser afterwards pays and takes up the note, he cannot maintain an action against the maker for money paid to his use. Coe v. Hutton, 1 Serg. and Raw. 398.]

[(a) Where judgment has been obtained against the maker of a note, the holder may issue an execution on the judgment or not, as he pleases; and the endorser is not discharged in consequence of any negligence of the holder in his endeavors to obtain the money of the

maker.

In a case where judgment had been obtained against both the maker and endorser of a note, and the judgment creditor had issued a fieri facias against the maker, at the request of the endorser, and on which it appeared probable that a great part of the money might have been raised, but afterwards countermanded it, it was held that the endorser was not entitled in equity to an injunction against proceeding upon the judgment obtained against him. Livingston J. delivering the opinion of the court, said, "If the endorser suffers any injury by the negligence of the judgment creditor, it is clearly his own fault, it being his duty to pay the money, in which case he may take under his own direction the judgment obtained against the maker. By an act of Maryland it seems expressly provided, which is, perhaps, only declaratory of the common law, that an endorser may tender to a plaintiff the amount of a judgment which has been recovered against the maker of a note, and obtain an assignment of it." Lenox v. Prout, 3 Wheat. R. 520.]

(24) Walwyn St. Quintin, 1 Bos. and Pull. 652. In an action by endorsees against the drawer of a bill, it appeared that after the bill had become due and been protested for non-payment, though no notice thereof had been given to the defendant, he having no effects in the hands of the acceptor, the plaintiffs received part of the money on account, from the endorser; and that to an application from the acceptor, stating that it was probable he should be able to pay at a future period, they returned for answer that they would not press him. It was urged that either of these facts discharged the drawer: but the court after argument, and time taken to consider, held that they did not, and awarded the postea to the plaintiff. Eyre C. J. said, that, had this forbearance to sue the acceptor taken place before noting and protesting for non-payment, so that the bill had not been demanded when due, it was clear that the drawer would have been discharged: it would have been giving a new credit to the acceptor. But that after protest for non-payment, and notice to the drawer, or an equivalent to notice, a right to sue the drawer had attached, and the holder was not bound to sue the acceptor: he might therefore forbear to sue him.