Effect of delivery defendant was a party thereto, or delivered it to the of bill to payce. plaintiff, that the defendant had due notice of the dis honor1; and it is a good plea in an action for the original debt, that the defendant delivered a bill or note in payment, or for or on account of such debt, and compels the plaintiff to reply that the bill or note has been dishonoured'; and in an action for the original demand, if it appear in evidence that a negotiable bill or note was given, the plaintiff cannot recover without producing the instrument, or proving that it was destroyed. It suffices, however, for the plaintiff, 3 indorsed to him a note for £100, drawn by Jones, and payable to defendant or order; and at the foot of an account stated between the parties, plaintiff wrote, "received the contents, when the above mentioned bill is paid." Plaintiff indorsed over the note which became due, 28th March, 1735. Jones carried on business, and continued his payments till the 13th May following; one question therefore was, whether the plaintiff, by receiving this note, and not applying for the money due thereon, had lost his original debt? The court held, that where a note is taken for a precedent debt, it must be intended to be taken by way of payment, upon this condition, that the note is paid in a reasonable time, but if the person accepting it, doth not endeavour to procure such payment, and the money is lost by his default, it is but reasonable that he should bear the loss, see Ward v. Evans, 2 Ld. Raym. 928, 9, 30.-Chamberlain v. Delarive, 2 Wils. 353. Hebden v. Hartsink and another, 4 Esp. Ni. Pri. 46. Assumpsit by the plaintiff for wages as a clerk to the defendant. Pleas of nonassumpsit and a set-off. To prove payment of £140, in part discharge of the plaintiff's demand, the defendants gave in evidence that they had given him bills of the house to that amount. It was contended for the plaintiff, that before this could be deemed a discharge to that amount, the defendants should prove the bills to have been paid. Lord Kenyon said, it was not necessary; that where a party took bills in payment of a debt, he would presume the money was received, unless the contrary was shewn. 14 Ann. c. 9. s. 7.-Bridges v. Berry, 3 Taunt. 130. but sec Bishop v. Rowe, 3 M. & S. 362. 2 Kearslake v. Morgan, 5 T. R. 513. Assumpsit for goods sold and delivered, and for money lent. The defendant pleaded the general issue, and that as to £4. 14s. 6d. one W. P. made his promissory note for £10, payable to the defendant or order, at a time which elapsed before the commencement of the suit, and that the defendant, before the note became due, indorsed it to the plaintiff, for and on account of the said sum of £4. 14s. 6d. and of the sum of £5. 5s, 6d. paid by the plaintiff to the defendant, and that the defendant accepted the note, for and on account of those sums; to this plea there was a general demurrer, and it was urged, that the plea ought to have alleged that the note was received in satisfaction of the debt; but the court, on argument, held the plea good, and advised the plaintiff to withdraw his demurrer and reply, which he did. 3 Dangerfield v. Wilby, 4 Esp. Ni. Pri. Ca. 159. The declaration contained a count upon a note made by the defendant, payable to the of bill to payee. when the bill was received in satisfaction from a third Effect of delivery person, and the original debtor, the defendant, was no party to it to prove the due presentment for acceptance or payment and the dishonour, without shewing that he gave notice thereof to the drawer of such bill, unless the defendant can prove that he sustained some actual loss for want of such notice'; and if the defendant admit the refusal of the drawee to accept the bill, although he request the creditor to present it again for acceptance, this will be unnecessary, and the creditor may recover his original demand without further proof of the dishonour of the bill2, We shall hereafter see that in general when the holder has been guilty of neglect, either in presenting a bill for acceptance, when necessary, or for payment, or in giving notice of non-acceptance, or of non-payment, or by giving time to the acceptor, this conduct will render the original delivery of the bill equivalent to a payment of the debt, and discharge such debtor from all liability 3. In general when the bill is dishonoured, and the holder uses due diligence, not only the parties to the bill are liable to be sued thereon, but the first liability on the original consideration revives. Therefore where A. sold plaintiff, and the money counts. At the trial the note was stated to be lost, but no evidence of the fact was offered. It was proved however, that on the money being demanded, the defendant had apologized for not having paid the money on account of the note, This was the whole of the plaintiff's case, and he contended that the note was only evidence of the consideration (which was stated to have been money lent) and that he might abandon the note, and go for the consideration. But Lord Ellenborough said, that as the note for any thing that appeared in evidence was in existence it might be still in circulation, so that the defendant might be subjected twice to the payment of the same demand, without therefore proving the note lost, the plaintiff was not entitled to recover. Nonsuit. Bishop v. Rowe, 3 M. & S. 362.-Post; but see Bridges v. Berry, 3 Taunt. 130. Hickling v. Hardy, 7 Taunt. 312. 34 Ann. c. 9. s. 7.-Smith v. Wilson, Andr. 187.-Chamberlain v. Delarive, 2 Wils. 353.-Ward v. Evans, 2 Ld. Raym. 930. Smith v. Wilson, Andr. 187.-Popley v. Ashley, 6 Mod. 147.— Ward v. Evans, 2 Ld. Raym. 928.-Hickling v. Hardey, 7 Taunt. 312. Bishop v. Rowe, 3 M. & S. 362.-Tempest v. Ord, 1 Mad. 89Tempest and others v. Ord and others, 1 Mad. Ch. Rep. 89. The manager of a colliery paying a creditor on the colliery with a bill of bill to payec. Effect of delivery goods to B. for which the latter was to pay in a bill at three months, and B. gave A. a check on his bankers, (who were also bankers of A. requiring them to pay A. on demand in a bill at three months, and A. paid the check into the bankers and took no bill from them, but the amount was transferred in the banker's books from B.'s account to A.'s with the knowledge of both, and the bankers failed before the check became due, it was holden that A. could not recover the value of the goods against B., as A. instead of taking bills from his bankers, agreed to leave the check with them, it was as if he had discounted it with them and then deposited the money'; but where the amount was not so transferred to A,'s account, it was holden that B. was still liable for the goods. And where A., wishing which was not paid, the colliery remains liable to the payment of the original debt. Per the Vice Chancellor: The justice of the case, independent of authorities, is clear. Crowther has supplied goods, and received a bill, which turns out to be mere waste-paper, and ought not therefore to be considered as a payment. Where a bill of exchange is given in payment of a debt, and the bill is not paid, the creditor, unless he has purchased the bill out and out, has a right to resort to his original cause of action. So, if before a bill becomes due, it is dishonoured, the creditor may resort to his original debt. Ward v. Evans, Ld. Raym. 928. A banker's note was paid to plaintiff's servant at noon, and presented for payment the next morning, at which time the banker stopped payment. On a case reserved, the court held it was presented in time, and judgment was given for the plaintiff on the original consideration. Puckford v. Maxwell, 6 T. R. 52. The defendant having been arrested by the plaintiff for £80. gave a draft for £45, and promised in a few days to settle the remainder, on which the plaintiff consented to his being discharged out of custody. The draft was dishonoured, and the defendant was again arrested upon the same affidavit. On a rule to shew cause why he should not be discharged out of custody, it was urged, that the draft having been accepted as part payment, could not be treated as a nullity. But per Lord Kenyon, in cases of this kind, if the bill which is given in payment, do not turn out to be productive, it is not that which it purports to be, and which the party receiving it expects it to be, and therefore he may consider it as a nullity, and act as if no such bill had been given. These questions have frequently arisen at nisi prius, where they have always been determined in the same way. Rule discharged. 'Bolton v. Richard, 6 T. R. 139.-Vernon v. Boverie, 2 Show. 296. Ex parte Blackburne, 10 Ves. jun. 204. 6. 2 Brown v. Kewley, 2 Bos. & Pul. 518. Ex parte Dickson, in the matter of Parker, a bankrupt, cited 6 T. R. 142. Dickson sold sugars to Parker, for which the latter was to pay him in one month by a good bill at two months. Parker gave Dickson a check on his bankers at Liverpool, requesting them to pay him of bill to payee. to send goods to B. at X., employed C. to carry and Effect of delivery deliver them to B. and engaged to pay C. for the freight, and C., on delivering them according to the order, took a bill of exchange from B. drawn on A. which bill was never paid, it was holden that A. was liable to pay the amount of the freight to C. notwithstanding the bill of exchange'. And where a person, in payment of goods, gives an order on his banker to pay the amount in bills, and the vendor takes bills for the amount, he will not lose his remedy against his original debtor, unless he be guilty of laches 2. In Ex parte Blackburne3, the Chancellor said, "I take it to be now clearly settled, that if there is an antecedent debt, and a bill is taken, without taking an indorsement, which bill turns out to be bad, the demand for the antecedent debt may be resorted to. It has been held, that if there is no antecedent debt, and A. carries a bill to B. to be discounted, and B. does not take A.'s name upon the bill, if it is dishonored there is no demand; for there was no relation between the parties, except that transaction; and the circumstance in a bill at three months, the Liverpool bankers drew 'Tapley v. Martens, 8 T. R. 451. This was an action of debt on charter-party from London to Ancona. Plaintiff delivered his cargo to the consignor of defendant, and applied to him for the payment of the freight. Plaintiff took a bill of exchange drawn by the consignee on defendant, which was not paid, in consequence of the consignee becoming insolvent. It was urged on the part of the defendant, that the plaintiff had given personal credit to the consignee by taking the bill in question, the defendant having furnished the consignee with money for that purpose. The court held, that the plaintiff neither having taken the bill for his accommodation, nor having been guilty of any laches in enforcing the payment, that the bill could not be considered as payment of the plaintiff's demand, and that the defendant was liable for the amount under the charter-party. See also Wyatt v. Hertford, 3 East. 147.-Marsh v. Pedder and others, 4 Campb. 257. 1 Holt C. N. P. 72.-Everett v. Collins, 2 Campb. 515. S. P. Ex parte Dixon, cited in 6 T. R. 142, 3.-Ante, 128.-Ex parte Blackburne, 10 Ves. jun. 204. acc.-Bolton v. Reichard, 1 Esp. Rep. 106. semb. contra. '10 Ves. jun. 206. K Effect of delivery of not taking the name upon the bill, is evidence of a of bill to payee. Effeet of the alteration of a bill, &c. purchase of it. In a sale of goods, the law implies a contract that those goods shall be paid for. It is competent to the party to agree that the payment shall be by a particular bill. In this instance it would be extremely difficult to persuade a jury under the direction of a judge, to say, "an agreement to pay by bills was satisfied by giving bills, whether good or bad.” If a bill of exchange or promissory note be altered, without the consent of the parties, in any material part, as in the date, sum, or time when payable, such alteration will, at common law, and independently of the stamp acts, render the bill or note wholly invalid, as against any party not consenting to such alteration; and this although it be in the hands of an innocent holder. Thus, an alteration in the date of a bill of exchange after it has been accepted and indorsed, without the acceptor's or indorser's consent, will discharge them from liability, even though such alteration were made by a stranger'; and where an alteration is made with a fraudulent intent, it will amount to forgery; and if there be no privity between the 'Master v. Miller, 4 T. R. 320.—5 T. R. 367.-2 Hen. Bla. 141. ́ Anstr. 225. S.C.-Com. Dig. Fait. F. 1.-Powell v. Divett, 15 East. 29. Master v. Miller, 4 T. R. 320. 2 Hen. Bla. 141. S. C. In an action by indorsees against the acceptor of a bill payable three months after date, to Wilkinson and Cooke, the declaration had one count on the bill, as dated the 20th of March, and another as dated the 26th March. The jury found a special verdict, stating that the bill was drawn and dated the 26th, that it was accepted, and that afterwards and whilst it remained in the hands of Wilkinson and Cooke, the date was altered from the 26th to the 20th March, without the defendant's knowledge, and by some person unknown to the jury. That after such alteration it was indorsed for a valuable consideration by Wilkinson and Cooke to the plaintiffs. After two arguments, Lord Kenyon, Ashburst, and Grose, Justices, held, that the alteration although by a stranger, vacated the bill. Buller, J. differed, but on error, the whole court was so clear that it was vacated, that they would not hear a second argument, and judgment for the defendant was affirmed. See Henfree v. Bromley, 6 East. Rep. 309. 2 The King v. Treble, 2 Taunt. 329. This was an indictment against the defendant for forgery, with intent to defraud Messrs. Kelliway. It appeared that Messrs. Kelliway, who were bankers in the country, made their re-issuable potes payable at Sir M. Bloxam and |