acceptor; and how discharged, 4thly. Liability of laws of a foreign country, where the acceptance was made, and where it was to be performed, the obligation is by any act vacated, it will no longer have any obligatory force in this country; and by the consent of the holder, it may in all cases be waived or released, and the waiver may be either expressed or implied. With respect to the mode by which it may be waived or discharged, it may be observed, that the general rule of law is, that although a simple contract, previously to the breach of it, may be discharged by parol, yet, if it has once been broken, then it cannot be discharged without payment or a release in writing3; but in the case of a bill, it is otherwise; and the courts have gone so far as to decide, that what amounts to an assent to discharge the acceptor, is a question for the jury, arising out of the circumstances of the case; from which it might be inferred, that any act Robertson v. French, 4 East. 130.-Burrows v. Jemino, Stra. 733. Sel. Ca. 144. S. C. et ante, 120, 1. Burrows v. Jemino, 2 Stra. 732. The plaintiff accepted a bill at Leghorn, and by the law there, if the drawer fails, and the acceptor hath not sufficient effects of the drawer in his hands at the time of the acceptance the acceptance becomes void. And this being the plaintiff's case he instituted a suit at Leghorn, and his acceptance was thereupon vacated by the sentence of that court. The plaintiff, on his return to England, was sued as acceptor, and now filed his bill for an injunction and relief. King, Lord Chancellor, held, that the plaintiff's acceptance of the bill having been vacated and declared void by a com. petent jurisdiction, that sentence was conclusive, and bound the court of chancery here, and granted a perpetual injunction to enjoin the defendant from suing upon this bill. 2 Bayl. 90. 3 Fitch v. Sutton, 5 East. 230.-Rozal v. Lampen, 2 Mod. 43.— Edwards v. Weeks, id. 259.-Langden v. Stokes, Cro. Car, 383.May . King, Cases, K. B. 538.-Vin. Ab. tit. Release.-Com. Dig. tit. Pleader, 2 G. 13. et tit. Action on the Case in Assumpsit, G.Heathcote v. Crookshanks, 2 T. R. 24. Ellis. Galindo, cited in Dingwall v. Dunster, Dougl. 247. James Galindo drew upon his brother for £30, in favor of the plaintiff. When the bill became due, James paid the plaintiff £3 15s. 4d. and indorsed a promise to pay the remainder in three months. Three years elapsed, and then plaintiff sued the drawee upon his acceptance. Lord Mansfield thought the defendant discharged, and nonsuited the plaintiff. An application was made for a new trial, when Lord Mansfield said, he thought the case did not interfere with Dingwall and Dunster, but a rule to shew cause was granted; after cause was shewn, Lord Mansfield said, the doubt is, whether the question should not have been left to the jury, it being a question of intention arising acceptor; and indicating an intention to relinquish the right of ac- 4thly. Liability of tion, will be sufficient: but that decision appears in how discharged. some measure to be contradicted by the case of Dingwall against Dunster', where the court decided, that nothing but an express consent, or the statute of limitations, would discharge the acceptor; and that no indulgence to him or to the drawer would have that operation; and in a late case it was decided, that though the holder of a bill may discharge the liability of the acceptor by parol, yet for this purpose, the words must amount to an absolute renunciation of all claim upon him in respect of the bill. It has also out of the circumstances. Willes, J. I thought it should have been left to the jury; and per Buller, J. I rather think the case should have gone to the jury; but I am not therefore of opinion, that there ought to be a new trial, the indorsement could not have been meant as an additional security, for the drawer was equally liable before, I should have left the question to the jury, but with very strong observations, and as the demand is so sinall I do not think there ought to be a new trial. Rule discharged. 'Dingwall v. Dunster, Dougl. 247. et vid. Anderson v. Cleland, 1 Esp. Rep. 46.-Byrn v. Godfrey, 4 Ves. jun. 8.-Anderson v. Cleland, 13 East. 430. Dingwall v. Dunster, Dougl. 235. 247. Dunster lent Wheate his acceptance, which became due the 13th December, 1774. It was then in the hands of Dingwall; but he finding that Wheate was the real debtor, wrote to his attorney in February and November 1775, for payment, received interest upon the bill from Wheate, and suffered scveral years to elapse, without calling on Dunster. On 13th February, 1775, Dunster wrote to thank Dingwall for not proceeding against him, and said, he had been informed by a person Dingwall had sent, that Wheate had taken up the bill; but Dingwall took no notice of this letter; he afterwards sued Dunster, for whom the jury found; but upon a rule to shew cause why there should not be a new trial, the whole court held, that there was nothing in the plaintiff's conduct to discharge Dunster; that it meant nothing more than an indulgence to him, and that he would try to recover from the drawer if he could; but by Lord Mansfield, no use has been made of the defendant's letter; probably the fact did not warrant him in asserting that a person the plaintiff sent had told him Wheate had taken up the bill; had the plaintiff by any thing in his conduct confirmed him in such a belief it might have altered the case, Bayl. 92. Anderson. Cleveland, 13 East. 430. 1 Esp. Rep. 46. In an action by an indorsee against the acceptor of a bill, no demand was proved till three months after the bill was due, and when the drawer had become insolvent; but per Lord Mansfield, the acceptor of a bill or the maker of a note always remains liable. The acceptance is a proof of having assets in his hands, and he ought never to part with them unless he be sure that the bill is paid by the drawer, Bayl. 93. Whatley v. Tricker, 1 Campb. Rep. 35. The indorsces of a bill knowing that it had been accepted for the accommodation of the acceptor; and how discharged, 4thly. Liability of been adjudged, that a release by the holder to the drawee, after the bill is drawn, and before acceptance, will not discharge him from the obligation raised by a subsequent acceptance, because he was not chargeable at the time of the release'. And where the drawer of a bill of exchange, accepted by defendant, agreed with him and the rest of his creditors to take a composition of eight shillings in the pound, to be secured by promissory notes, to be given by defendant payable on days certain, and that defendant should assign to the creditors certain debts upon which they should execute a general release, and the assignment was executed, and all the creditors except the plaintiff received their composition and executed the release, and plaintiff might have received his promissory notes if he had applied for them; but it did not appear that defendant had ever tendered them to plaintiff, or that he had ever applied for them, and the plaintiff afterwards, and after the days of payment of the promissory notes had expired, sued the defendant on the bill of exchange, it was held that he was not precluded by the agreement from recovering. But a general release by the drawer of a bill to the acceptor will, as between them, discharge the acceptor; though the drawer is not the holder, nor has then paid the bill3. drawer, and possessing goods of the drawer's, from the produce of which they expected payment, said (at a meeting of the acceptors' creditors), that " they looked to the drawer, and should not come upon the acceptors." In consequence of which the latter assigned their property for the benefit of their creditors, and paid them 15s. in the pound. The drawer's goods however proved to be of little value, and he became insolvent, upon which the indorsees sued the acceptors. Lord Ellenborough said, that if the plaintiff's language amounted to an unconditional renunciation of all claim upon the acceptors, whereby the latter had entered into an arrangement with their creditors, the acceptors were discharged, if only to a conditional promise not to resort to the acceptors if satisfied, elsewhere they were not. The jury found for the plaintiff. Bayl. 90. 'Drage v. Netter, Lord Raym. 65. of acceptor; and What amounts to a waiver, and discharge of the 4thly. Liability acceptor's liability, must depend on the circumstances how discharged. of each particular case. An agreement to consider an acceptance as at end'; or a message by the holder to the acceptor of an accommodation bill, that the bu siness has been settled with the drawer, and that he need not give himself any further trouble; have been holden to amount to a waiver of an acceptance. But it should seem, that the holder's receiving a part of the money due on a bill from the drawer, and taking a promise from him upon the back of it for the payment of the residue at an enlarged time, will not of itself amount to a discharge of the acceptor. It has been decided, that if the holder of a bill of exchange agree not to sue the acceptor, upon his making affidavit that the acceptance is a forgery, and such affidavit be accordingly made and sworn, he cannot afterwards bring an action on the bill, though the affidavit be false ✨. When a bill is accepted in consideration of the future consignment of goods to the acceptor, and the prospect of the profit of the commission on the sale. thereof, and the holder of the bill aware of the nature of the acceptance, agree to take, and receives the bill of lading, &c. from the acceptor, which were the consideration of the acceptance, the acceptor is by this act of the holder discharged from the liability Walpole v. Pulteney, cited Dougl. 236, 7. 248, 9. Walpole held a bill accepted by Pulteney, but agreed to consider his acceptance at an end, and wrote in his bill book, opposite to the entry of this bill, "Mr. Pulteney's acceptance is at an end." Walpole kept the bill from 1772 to 1775, without calling upon Pulteney, and then brought this action. The jury found a verdict for the plaintiff; but the court of exchequer thought the verdict wrong, and granted a new trial, upon which the jury found for the defendant. Bayl. 90. 2 Black v. Peele, cited Dougl. 236, 7, 248, 9. Black arrested Peele as acceptor of a bill drawn by Dallas, but on fiuding that the acceptance was an accommodation one, his attorney took a security from Dallas, and sent word to Peele, that he had settled with Dallas, and that he need not give himself any further trouble. Dallas afterwards became bankrupt, upon which Black again sued Peele; but it was held that as Black had, in express words, discharged Peele, the ac tion could not be maintained. Bayl. 90. 3 Ellis v. Galindo, ante, 246, n. 4. Stevens v. Thacker, Peake, 187.-Lloyd v. Willan, 1 Esp. Rep. 178. ** of acceptor; and how discharged. 4thly. Liability imposed on him by his acceptance'. He is also discharged when, as has been before observed, the holder, upon an offer by the drawee of a conditional or partial acceptance, gives a general notice of non-acceptance to any of the antecedent parties, omitting to mention in such notice the nature of the acceptance offered. But the drawee will not be discharged from liability in the case of an acceptance payable at a banker's, by the holder's neglect to present it there, although he can prove that he has sustained damages in consequence of such neglect, and though it is reported to have been decided at Nisi Prius, that an accommodation acceptor will be discharged by the holder's giving time to the drawer after having notice that the bill was accepted for his accommodation: yet it has been since decided, that the holder's giving such time or taking a cognovit from the drawer, though he have notice that the bill was accepted for the accommodation of such drawer, will not discharge the acceptor'. Mason v. Hunt, Dougl. 284. 297. Rowland Hunt agreed that his partner, Thomas Hunt, should, on consignment of a cargo, and an order for its insurance, accept bills for £3,600. The cargo was consigned, the order for insurance given, and Thomas Hunt effected the insurance, but he refused to accept the bills. After some negocia tion, the plaintiff, being the holder, signed a memorandum, by which, after stating that the consignment had been made on account of the bills, and that the Hunts being apprehensive that the net proceeds might not be sufficient to discharge them, had refused to accept, he accepted the bill of lading and policy, and undertook to apply the net proceeds, when in cash, as far as they would go, to the credit of the payce, in part payment of the bills. The plaintiff afterwards sued the Hunts, and insisted that Rowland Hunt's agreement was an acceptance; but after a verdict for the defendant, and time taken to consider, upon a rule to shew cause why there should not be a new trial, the whole court was clear, that by the memorandum the plaintiff had waived all right to insist upon Rowland Hunt's agreement, for it was obvious, that the whole consideration of the acceptance was the consignment, upon which there would be a commission, and the policy and these the plaintiff had taken to himself. 2 Sproat. Matthews, 1 T. R. 182.-Bentinck v. Dorrein, 6 East. 199. ante, 244, 5. 3 Sebag v. Abitbol, 4 M. & S. 462.—and see post, as to present ment. 4 Paxton v. Peat, 2 Campb. 185. 5 Fentum v. Pocock, 1 Marsh. 14.-5 Taunt. 192, S. C. This was an action against the acceptor of a bill of exchange, and at the trial the plaintiff had a verdict with liberty for the defendant to move to enter a nonsuit, on the ground that he was discharged by the plaintif |