CHAPTER A warrant of attorney is not an extinguishment of the debt, as between the parties. "Till judgment is entered EXTINGUISH- up," says Lord Ellenborough, "the warrant of attorney is merely a collateral security, and cannot merge the original debt" (t). MENT OR MERGER. Effect of warrant of attorney. Of transfer to an acceptor. OF JUDG- OF EXECU- Of discharge from execution. A bill indorsed in blank to one of several acceptors, and in his hands when due, cannot be afterwards transferred (u), so as to confer on the transferee a remedy against any of the acceptors; for there has been that which is an equivalent to the performance of the contract. Judgment recovered on a bill or note is an extinguishment of the original debt, as between the plaintiff and the defendant. But it alone, without actual satisfaction, is no extinguishment, as between the plaintiff and other parties not jointly liable with the original defendant, whether those parties be prior or subsequent to the defendant (x). Nor is it an extinguishment, as between a party prior to the plaintiff, to whom the plaintiff after the judgment returns the bill, and the defendant (y). But a judgment recovered against one of several joint makers or joint acceptors, though without satisfaction, is a good plea in bar to an action against the others (z). But a judgment recovered against one joint and several maker is no plea to an action against his companion (a). Nor does the issuing of execution against the person or goods of one party to a bill extinguish the plaintiff's remedy against other parties. Nay, even the discharging of one party from execution, under a ca. sa., though it is a satisfaction as to him, and a discharge of those parties to the bill who are his sureties 30. Quære, as to the effect when (t) Norris v. Aylett, 2 Camp. (u) Steele v. Harmer, 15 L. J., Exch. 217; 14 M. & W. 831, S. C. As to this, see the judgment of the thereon (b), is no extinguishment of the liability of other parties (c). CHAPTER Waiving a fieri facias against the goods of a party does of waiving a not discharge any other party (d). fieri facias. Taking security of a higher nature, as a deed, though it of taking a deed. extinguish the simple contract debt on the bill, as between the parties to the substitution, has no effect on the liability of the other distinct parties to the bill (e), supposing that it does not give time so as to prejudice the condition of sureties. Indeed, if the specialty were given and accepted as a collateral security only, even the liability on the bill, of the party giving it, remains unaffected (ƒ). If a bill or note be taken on account of a debt and nothing SUSPENSION. be said at the time, the legal effect of the transaction is this -that the original debt still remains, but the remedy for it is suspended till maturity of the instrument in the hands of the creditor (g). This effect of giving the bill has also been described as a conditional payment (h). It is an exception, but not a solitary one, to the general rule of law, that a right of action once suspended by act of the parties is gone for ever (i). The action for the original debt is equally suspended if the bill or note be given by a stranger (k), or if it be outstanding in the hands of a transferee. Where a bill is renewed, holding the original bill, and Effect of renewal. taking the substituted one, operates as a suspension of the debt till the substituted bill is at maturity (7). And although the second bill for the principal sum should be paid, the (b) See Chapter on INDULGENCE, post. (c) Hayling v. Mulhall, 2 W. Bl. 1235, the marginal note of this case is incorrect, see English v. Darley, 2 Bos. & P. 61; 3 Esp. 49, S. C.; Clark v. Clement, 6 T. R. 525; Mayhew v. Crickett, 2 Swanst. 190. See Michael v. Myers, 6 M. & G. 702. (d) Pole v. Ford, 2 Chit. 125. (e) Bayley, 6th ed. 334; Bac. Ab. Extinguishment, D.; Ansell v. Baker, 15 Q. B. 20. (f) Bedford v. Deakin, 2 B. & Ald. 210; 2 Stark. 178, S. C. (g) Kearslake v. Morgan, 5 T. R. 513; 2 Wms. Saund. 103 b, n. c; Steadman v. Gooch, 1 Esp. 3. (i) Belshaw v. Bush, 11 C. B. (k) Ibid. (1) Kendrick v. Lomax, 2 C. & J. 405; 2 Tyrw. 438, S. C. See Ex parte Barclay, 7 Ves. 597; Bishop v. Rowe, 3 M. & Sel. 362; Dillon v. Rimmer, 1 Bing. 100; 7 Moore, 427, S. C.; In re London and Birmingham Bank, 34 L. J., Chan. 418. CHAPTER Of debtor be coming administrator. Covenant not to sue within a limited time. plaintiff may recover interest due on the original bill at the time when the second was given, by bringing an action on the original bill, unless it appear that the second bill was intended to operate as a renewal, or satisfaction of the whole of the former bill (m). If the second bill be discharged, by an alteration, an action may be brought on the first (n). If, as we have seen, a debtor on a bill takes out administration to his deceased creditor, that is a suspension of the right of action (0). A covenant not to sue for a limited time will not suspend the right of action (p), but will only create a right to sue for the breach of covenant. No more will a subsequent, or even a contemporaneous, but collateral, agreement on good consideration not to sue for a limited time on a bill or note (q). (m) Lumley v. Musgrave, 4 Bing. N. C. 9; 5 Scott, 230, S. C.; Lumley v. Hudson, 4 Bing. N. C. 15; 5 Scott, 238, S. C. (n) Sloman v. Cox, 1 C., M. & R. 471; 5 Tyrw. 174, S. C. (0) Ante, p. 56. See Lowe v. Peskett, 16 C. B. 500. (p) Thimbleby v. Barron, 3 M. & W. 210. (q) Ford v. Beech, 11 Q. B. 842, in error; Webb v. Spicer, 19 L. J., Q. B. 35; 13 Q. B. 894, S. C., in error; Moss v. Hall, 5 Exch. 50; per Parke, B., Salmon v. Webb, 3 H. L. Cas. 510; Flight v. Gray, 3 C. B., N. S. 320. AN express release, relaxatio, is an acquittance under the seal of the releasor. Being a deed, no consideration is essential to its validity (a). CHAPTER What it is. maturity. A release by the holder after the maturity of the bill, is a Release at complete discharge as between the releasor and his transferees on the one hand, and the releasee on the other. Its effect on other parties will be considered when we come to the subject of principal and surety. But a premature release, i. e., a release before the bill is Premature due, though good as between the parties, will not discharge release. the releasee from the claim of an indorsee for value, who took the bill before it was due, without notice of the release (b). And a release, whether before or after the maturity of the By a party who bill, is good as between the parties, although the releasor be is not the holder. not at the time of the release the holder of the bill (c). (a) As to the discharge of contract before breach, see the preceding Chapter. (b) Dod v. Edwards, 2 C. & P. 602. (c) Scott v. Lifford, 1 Camp. 246; 9 East, 347, S. C. If an ac ceptor plead a release it must ap- CHAPTER To drawee before acceptance. By or to one of several jointly But a release of a drawee before acceptance is inoperative (d). A release by one of several joint creditors is a release by all. And a release to one of several joint contractors is in entitled or liable. law a release of all (e). Therefore a release of one of two joint acceptors or joint indorsers is a release to both. Restrained by a recital. Covenant not to sue. Covenant not to sue for a limited time. A release of one of several joint debtors, who are severally, as well as jointly, liable, is equally a release to all, for judgment and execution against one would have been a discharge to all (ƒ). But it has been held, that a release to parties jointly liable may in some cases be restrained by the terms of the instrument (g), and may be construed as a covenant not to sue where such a construction is necessary to carry out the paramount intention of the deed (h). But it cannot be defeated by a mere parol agreement (i). FiDig: Bebeare Indeed, the most general and sweeping words of release may be qualified and restrained by the recital (j). com: Deg: Relian A covenant not to sue amounts in law to a release. But though it may be pleaded as a release by the party to whom it is given, it does not so far operate as to discharge another person jointly liable (k). Nor will a covenant not to sue, given by one of two joint creditors, operate as a release (7). A covenant not to sue for a limited time, though (as we shall hereafter see) it discharges sureties, does not, as be (d) Drage v. Netter, 1 Ld. (e) Co. Litt. 232, a; Nicholson (f) Nicholson v. Revill, 4 Ad. & E. 675; 6 N. & M. 192; 1 Har. & W. 753, S. C.; Evans v. Themridge, 2 K. & J. 174; 25 L. J., Ch. 102, S. C. (g) Brooks v. Stuart, 1 Per. & D. 615; 9 Ad. & E. 854, S. C.; Cocks v. Nash, 9 Bing. 341; Price v. Barker, 4 E. & B. 460; Henderson v. Stobart, 5 Exch. 99. (h) Solly v. Forbes, 2 B. & B. 38; Willis v. De Castro, 27 L. J., (i) 2 Rol. Ab. 412; Lacy v. (j) Payler v. Homersham, 4 M. & S. 423; Simons v. Johnson, 3 B. & Ad. 175. (k) Dean v. Newhall, 8 T. R. 168; Hutton v. Eyre, 6 Taunt. 289; Price v. Barker, 4 E. & B. 760. (1) Walmesley v. Cooper, 11 Ad. & Ell. 216; 3 Per. & Day. 149, S. C. De as to a tornout Got to sue contained an a comportion dead. Ellie M Hugh R 6P228 vee post h |