ing time to

Of the ef- Thus where the holder of a bill of exchange, of which payment had fect of giv-been refused, informed the drawer of his intention to take security or releasing from the acceptor, and the drawer answered, "you may do as you like, the accept for I am discharged for want of notice;" and it appeared that due

or, &c.

notice had been given, it was held that this amounted to an assent on the part of the drawer, and that the holder might still sue him, after taking security from the acceptor. But in a subsequent case, where the holder of a bill of exchange, on its becoming due, allowed the acceptor to renew it without consulting the indorser, but the indorser afterwards said to the acceptor, "it was the best thing that could be done," it was held, that the indorser was nevertheless discharged, because this was not a recognition of the terms granted by the holder to the acceptor, but such approbation must be considered as referring to the acceptor of the bill, to whom the arrangement was obviously advantageous.

In the instances before stated, where the laches of the holder, in not giving notice of the non-acceptance of a bill, will be excused by [ 295 the circumstance of the drawer, indorser, &c. not having effects in the

hands of the drawee, such parties would also not be discharged by the holder's giving time to or taking security from the acceptor. Therefore the holder for a valuable consideration of a bill accepted for the accommodation of the drawer, may prove the bill under a commission against the drawer, notwithstanding he has taken security from the acceptor, and given him time for payment. So if the acceptor of a bill be merely an agent for the drawer, who is the purchaser of goods, the holder's renewing the bill without the consent of the drawer, will not discharge him.

of the defendant to the security being ta-
ken; and therefore that the defendant was
not discharged by this indulgence to the
acceptor. Selw. 4th edit. 348.

Stevens v. Lynch, 12 East, 38. The
defence in this action, which was by an
indorsee against the drawer of a bill, was
that the plaintiff had given time to the ac-
ceptor, 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 af-
ter 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.

y Id. ibid.

Withall v. Masterman, 2 Campb. 179.
Selw. 4th edit. 348.

Ante, 198 to 209. 233 to 240.

b Walwyn v. St. Quintin, 1 Bos. & Pul. 652. 2 Esp. Rep 516, 17. S. C. Gould v. Robson, 8 East, 576. Ante, 291. Ex parte Holden, Cooke's B. L. 167.

Collott v. Haigh, 3 Campb. 281. This was an action on a bill of exchange drawn by the defendant upon J. Dufton, accepted by him, and indorsed to the plaintiffs. It appeared that when the bill became due, the plaintiffs gave time for

some weeks to Dufton, upon his lodging
some security in their hands, which did
not turn out to be available; but it was
likewise proved, that Dufton had ac-
cepted the bill merely for the defendant's
accommodation, without any considera-
tion whatsoever. Lord Ellenborough
ruled, that under these circumstances
the defendant was not discharged by the
time given to the acceptor. The drawer
of an accommodation bill must be con
sidered as the principal debtor, and the
acceptor only in the light of a surety.
The reason why notice of the dishonour
of a bill must in general be given to the
drawer, is, that he may recoup himself
by withdrawing his effects from the hands
of the acceptor, and he is discharged by
time given to the acceptor without his
consent, because his remedy over against
the acceptor may thus be materially af
fected. But where the bill is accepted
merely for the accommodation of the
drawer, he has no effects to withdraw,
and no remedy to pursue, when compelled
to pay.
He therefore suffers no injury
either by want of notice, or by time
being given to the acceptor; and in an
action on the bill, he cannot defend him-
self upon either of these grounds. Verdict
for plaintiff.

Id. ibid. Ex parte Holden, Cooke's
B. L. 167. 1 Mont. 153. Cullen, 100.
a Clark and another v. Noel, 3 Campb.

After regular notice of the non-payment of a bill, the holder may of the ef tacitly forbear to sue the acceptor, provided he do not agree for suffi- fect of giv cient consideration to give a precise time, and may receive proposals or releasing for a security without prejudicing the claims on the other parties, and the acceptit has even been holden, that agreeing (after a bill has become due and or, &c. been regularly protested for non payment, and notice thereof given) not to press the acceptor, will not discharge the drawer. And when the holders of a bill of exchange which had been refused payment by the acceptor, gave notice thereof to the drawers, but informed them that they had reason to believe it would be taken up in a few days, and offered to retain the bill till the end of the week unless they received their instructions to the contrary, it was held that such conduct did not discharge the drawer, although no further notice of non-payment was given ; and even an express agreement not to sue, made after giving notice of non-payment, but without sufficient consideration, and without taking any new security, being nudum pactum, will not discharge

or, &c.

Of the ef- the other parties; and it has been decided, that where all parties have fect of giv- had due notice of the dishonour of a bill, a subsequent indorser is not ing time to lischarged by a treaty between the attorney of the holder and the drawer of releasing the accept and acceptor, that the holder should wait a given time for the payment of the balance in consideration of receiving from the acceptor, or prior indorser, by a certain time, a stipulated proportion of the account, a part only of which proportion was afterwards paid, although the subsequent indorser had no notice of such treaty or the result, nor was informed of the payment of any part of the money due on the bill, or of the ultimate non-payment of the balance till some months after the original dishonour of the bill. And though we have just seen, that taking a cognovit payable at a distant time, might discharge the drawer and indorsers; it would be otherwise if a cognovit or warrant of attorney be taken without giving time."

the accept

or, &c.

Of receiv- It appears to have been holden, that if on presentment for payment, ing part-the holder take less than the whole sum due thereon of the acceptor, or payment of indorser, in part satisfaction, without the assent to the other parties to the bill, he thereby discharges them, because, as it was said, it is an election to receive payment from the acceptor." But it is now settled, that the holder may receive part payment from the acceptor, or indorser, and may sue the other parties for the residue, provided he do not also give time to the acceptor for the payment of such residue ; and if the holder of a joint and several promissory note, enter up judgment by cognovit against one of the makers, and levy part under a fi. fa. this is no discharge of the other."

[298] It is said, that if the drawee have on presentment for acceptance, engaged to pay only a part, and the holder has given notice of such partial acceptance to the other parties, he should, when the bill becomes due, receive of the drawee the sum for which he accepted, and cause a protest again to be made for non-payment of the remaining

sum.9

Though the giving time to an acceptor, or indorser, will thus in

Effect of indulgence Semble Walwyn v. St. Quintin, 1 Bos. as to prior & Pul. 655. Dean v. Newhall, 8 T. R. parties. 168. Fitch v. Sutton, 5 East, 230.

Arundle Bank v. Goble, K. B. 1817. Action by indorsee against drawer of a bill. The plaintiffs were the holders when the bill became due, and duly presented the same to the acceptor for payment, and wrote a letter to the defendant in due time, informing him of the dishonour, but that from the promise of the acceptor they expected the same would be shortly paid. Afterwards the acceptor applied to them for indulgence for some months. They in reply wrote to the acceptor, that they would give him the time, but that they should expect interest. The cause was tried on the home circuit, before Burroughs, J. when it was contended by Nolan and Comyn for the defendant, that this indulgence to the acceptor discharged the drawer; but the jury found a verdict for the plaintiffs. On motion to the court of K. B. for a new trial, the court held, that as no fresh secueity was taken from the acceptor, the

agreement of the plaintiffs to wait with-
out consideration did not discharge the
drawer, because the acceptor might,
notwithstanding such agreement, be sued
at the next instant, and that the under-
standing that interest should be paid by
the acceptor, made no difference. Rule
refused. See also Willison v. Whitaker,
2 Marsh. 383; and Brickwood v. Anniss,
5 Taunt. 614. Ante, 292; and Bayl. 154.
* Badnall ". Samuel, 3 Price, 521.
1 Ante, 293.

mAyrey v. Davenport, 2 New Rep.

474.

» Tassel v. Lewis, 2 Lord Raym. 744. Kellock v. Robinson, 2 Stra. 745. Sel. Ca. 147. S. C. Bul. Ni. Pri. 273. Hull v. Pitfield, 1 Wils. 48.

Gould v. Robson, 8 East, 580, ante, 291 Walwyn e. St Quintin, 1 Bos & Bal. 652, ante, 296. Bul. Ni. Pri. 271. 271, 275. Mar. 86. Bay! 154.

Ayrey v. Davenport, 2 New Rep. 474. supra, note. Ex parte Gifford, 6 Yes.

805.

9 Mar. 68, 85, 86.

parties.

general discharge all subsequent indorsers, who would be entitled to Effect of resort to the party indulged, the giving time to a subsequent indorser indulgence as to prior will not discharge a prior indorser, and therefore the holder of a bill may sue a prior indorser after having let a subsequent indorser whom he had taken in execution, out of jail, on a letter of license, without paying the debt. And it has been decided, that the holder of an accommodation note, who has received a composition from, and who has covenanted not to sue the payee, for whose accommodation the note was made, may notwithstanding, sue the maker, though on payment of it he will have a right of action against the payee ; and if the holder release to the payee all claims in respect of the note, not knowing that he is a surety, this will not discharge the maker." And it has long been settled, that if the holder of an accommodation bill [299] receive a part from the drawer, and takes a promise from him upon the back of the bill, for the payment of the residue at an enlarged time, it is clear that such act will not discharge the acceptor. And though in one case it was held, that if the indorsee of a bill of exchange having notice that it was accepted without consideration, receive part payment from the drawer and give him time to pay the residue, he

Claridge v. Dalton, 4 M. & S. 232. Hayling v. Mullhall, 2 Bla. Rep. 1235. English v. Darley, 2 Bos. & Pul. 61. Smith v. Knox, 3 Esp. Rep. 47. Nadin c. Battie, 5 East, 147; and see Ex parte Barclay, 7 Ves. 597. Bayl. 151. Selw. 4th ed. 348.

Claridge v. Dalton, 4 M. & S. 232, 3. Per Bayley, J. "If the holder gave time to the payee he cannot call on the indorsers; but this rule does not apply to a party lower down on the bill, as if the fifth indorsee were to give time to the last indorser for six months, proposing in the mean while to endeavour to get payment for the indorsers lower down on the bill: this might well be done."

Hayling v. Mullhall, 2 Bla. Rep. 1235. A bill was indorsed by Sheridan to Boon, and by him to the plaintiff : he sued Boon and took him in execution, but discharged him upon a letter of license. He then sued Sheridan, for whom the defendant became bail, and upon an action against the defendant, he contended that the debt was satisfied by the imprison ment of Boon, but the court was clear it was not, and Mullhall was obliged to pay the money. See the observations on the error in the margin, analysis of this case, in English v. Darley, 2 Bos. & Pul. 62. Supra.

Hayling v. Mullhall, 2 Bla. Rep. 1235,

supra.

Mallet v. Thomspon, 5 Esp. Bep. 178. "Carstairs and others, assignees, &c. v. Rolleston and others, 5 Taunt. 551.1 Marsh. 207. To an action by the indorsees of a promissory note against the drawers, the defendant pleaded, that he drew the note as surety only for the payee, and that the plaintiff had released the payee from all claims in respect of

the said note, without alleging that the
plaintiff had notice of the want of con
sideration between the defendant and
payee: Held, that the release did not
operate as an extinguishment of the con-
sideration which the plaintiff has given
to the payee for notice, so as to make
it a note without consideration between
himself and the defendant, and therefore
that the plea was bad on general de-
murrer. Gibbs, C. J. This case has
been argued on the only ground on which
it could be supported for a moment, and
ingenuity has furnished an argument which
I had not discovered. The object of the
defendant was to accommodate the payee,
and I admit that the payee could not have
sued the makers of the note, nor could an
indorsee have done so, unless he had given
consideration for it. But it is insisted, that
the release which has been given by the
bankrupts, who were indorsees to the ori-
ginal payee, operates as an extinguishment
of the consideration which they gave for
it, and therefore puts them in the condition
of indorsees without consideration. I am
not of that opinion; the indorsement was
for a valuable consideration, and the in-
dorsees had the security of the defendants
as makers of the note for their debt, and
though they released the original payee,
they still retain their remedy against the
drawers. Whatever might have been the
case, if the bankrupts had had notice, that
the instrument was given originally with-
out consideration, as to which I give no
opinion, I am decided, that, as the matter
now stands, the plaintiffs right of action
remains against the defendants. The rest
of the court concurred in the opinion of the
C. J. Judgment for the plaintiffs.

* Ellis v. Gallindo, cited in Dingwall v.
Dunster, Dougl. 259.

Effect of thereby discharges the acceptor; yet in subsequent cases a different indulgence doctrine has been established." as to prior parties.