But he must use all due diligence to discover them. Whether he has used due diligence or not is in all cases a question for the jury.

Bateman v. Joseph, 12 East, 433.

Browning v. Kinnear, Gow,

81. Baldwin v. Richardson, 1 B. & C., 245. Siggers v. Browne, 1 M. & Rob., 520. Hewitt v. Thompson, 1 M. & Rob., 543. Chapcott v. Curlewis, 2 M. & Rob., 484. Beveridge v. Burgis, 3 Camp., 262. Frith v. Thrush, 8 B. & C., 387. Dixon v. Johnson, 1 Jur., N. S., 70. Allen v. Edmundson, 2 Ex., 719. Sturges v. Derrick, Wight., 76.

Of Acceptance or Payment supra Protest or for honour.

266. Protest for non-acceptance and non-payment is in complete disuse for inland bills, but it is necessary for foreign bills; but not for foreign promissory notes which are not intended for general circulation throughout the world.

When the drawee refuses acceptance or payment, or the holder desires better security, any other person may accept or pay it, or accept it for better security, for the honour of any of the parties to it. In such a case a protest is necessary, as the bill can only be accepted after a protest for non-accceptance or for better security. The acceptor then writes " Accepted supra protest in honour of A. B."

The drawee may refuse to accept it generally but he may accept it supra protest for the honour of any party to it.

A bill which has been accepted supra protest for the honour of one party may be accepted supra protest by another person for the honour of another party to it.

The holder is not bound to take an acceptance for honour.

Mitford v. Walcott, 1 Ld. Raym., 575.

The holder at maturity must present the bill to the drawee, who may in the meantime have received funds to pay

it.

If the drawee refuses payment the holder must then have the bill protested for non-payment, and it should then be presented to the acceptor for honour.

In all cases a presentment for payment to the drawee and a protest for non-payment are necessary to charge the acceptor for honor.

Vandewall v. Tyrrell, 1 M. & M., 87. Hoare v. Cazenove, 16 East., 391. Williams v. Germaine, 7 B. & C., 477. Mitchell v. Baring, 10 B. & C., 4. Geralopulo v. Wieler, 10 C. & B., 690. Ex

parte Wylde, 30 L. J., Bkey., 10. Ex parte Wackerbath, 5 Ves., 574. Ex parte Swan, L. R., 6 Eq., 344. Mertens v. Winnington, 1 Esp., 113. Goodhall v. Polhill, 1 C. B., 233.

267. The acceptor supra protest is bound by the same admissions as bind the party for whose honour he accepts.

Phillips v. Im Thurn, L. R., 1 C. P., 463.

268. The accepter supra protest acquires all the rights of the party from whom he receives the bill; except that he discharges all the parties after the one for whose honour he takes it up, and he cannot indorse it over.

Ex parte Wackerbath, 5 Ves., 574. Ex parte Swan, L. R., 6 Eq., 344.

269. Payment for the honour of any party puts the person in the place of an indorsee from that party: he may therefore either send notice of dishonour to all parties himself or he may send it to the party for whom he pays, and that party may send notice in due course.

Goodall v. Polhill, 1 C. B., 233.

On the Order of Liability of the Parties to a Bill or Note.

270. The parties on a Bill are never, and the parties on a Note are very frequently not, liable in an equal degree.

In a Bill the acceptor, and in a Note the maker, is the principal debtor, liable always and in any case to the holder; the drawee of the bill or the payee of the note, and the indorsers in either case, are only sureties, liable only to pay on certain conditions: and a release of the debt to the principal is in all cases a discharge to the sureties.

Each party in succession is a principal debtor to the holder, and the subsequent parties are his sureties.

Thus the acceptor or maker is the principal debtor to the holder; and the drawer or payee, and indorsers are his sureties.

Between the holder and the drawer or payee and subsequent indorsers, the drawer or payee is the principal debtor and the indorsers are bis sureties.

So the first indorser is a principal debtor to the holder and the subsequent indorsers are his sureties: and so on in succession. Where the payee is a different person from the drawer he

stands in the position of first indorsee of a bill payable to drawer's order.

Claridge v. Dalton, 4 M. & S., 226.

271. A discharge to any party is a discharge to all subsequent parties because they are merely his sureties: but a discharge to a surety is no discharge to a principal.

Smith v. Knox, 3 Esp., 46. Claridge v. Dalton, 4 M. & S., 226. English v. Darley, 3 Esp., 49. Hall v. Cole, 4 A. & E., 577. 272. If the holder of a bill has notice that it is an accommodation bill and given without value to the drawer he must consider the drawer as his principal debtor and the acceptor as his surety. Davies v. Stainbank, 6 De G. M. & G., 679. Bailey v. Edwards, 4 B. & S., 761.

66

273. Every person who being surety for the debt or duty of another, or being liable with another for any debt or duty, shall pay such debt or perform such duty, shall be entitled to have assigned to him, or to a trustee for him, every judgment, specialty, or other security which shall be held by the creditor in respect of such debt or duty, whether such judgment, specialty, or other security shall or shall not be deemed at law to have been satisfied by the payment of the debt or the performance of the duty; and such person shall be entitled to stand in the place of the creditor, and to use all the remedies, and, if need be, and upon a proper indemnity, to use the name of the creditor in any action or other proceeding at law or in equity, in order to obtain from the principal debtor, or any co-surety, co-contractor, or co-debtor, as the case may be, indemnification for the advances made and loss sustained by the person who shall have so paid such debt or performed such duty: and such payment or performance so made by such surety shall not be pleadable in bar of any such action or other proceeding by him: provided always that no co-surety, co-contractor, or co-debtor shall be entitled to receive from any other co-surety, co-contractor, or co-debtor, by the means aforesaid, more than the just proportion to which, as between those parties themselves, such last mentioned person shall be justly liable."

19 & 20 Vict. (1856), c. 97., s. 5.

274. In a joint and several note one party is frequently the principal and the others the sureties.

Evidence may be given that the holder has possession of the instrument with this knowledge: and therefore he must deal with the parties as principal and sureties.

VOL. II.

2 N

Pooley v. Harradine, 7 E. & B., 431.
N., 1. Mutual Loan Fund Assoc. v.

Taylor v. Burgess, 5. H & Sudlow, 28 L. J., C. P., 108.

Rayner v. Fussey, 28 L. J., Ex., 132. Greenough v. McClelland, 30
L. J., Q. B., 15. Oriental Financial Co. v. Overend, Gurney & Co.,

L. R., 7 Ch. Ap., 142.

275. A legal agreement founded upon a good consideration to give the principal debtor time to pay, or taking a new bill from him in lieu of the former one, without the consent of all the sureties will discharge them.

Unless the agreement contains a stipulation that the holder shall on default have judgment at as early a period as if he had sued him.

Gould v. Robson, 8 East., 576.
Taylor v. Burgess, 5 H. & N.,

(a) Moss v. Hall, 5 Ex., 46. Pooley v. Harradine, 7 E. & B., 431. 1. Michael v. Myers, 6 M. & G., 702.

Hall v. Cole, 4 A. & E.,
Hulme v. Collins, 2

(b) Kennard v. Knott, 4 M. & G., 474.
577. Price v. Edmunds, 10 B. & C., 578.
Sim., 12.

276. But a mere forbearance to sue; or a promise not to sue; or an offer to give time not acted upon; is no discharge to the sureties because it is a nudum pactum revocable at will.

Philpot v. Briant, 4 Bing., 717. Bell v. Banks, 3 Scott, N. R., 497. Hewet v. Goodrick, 2 C. & P., 468. Badnall v. Samuel, 3 Price, 521, Walwyn v. St. Quentin, 1 B. & P., 652.

277. So if the creditor takes a new bill or other security as a mere collateral security and in addition to, and not in lieu or substitution of the old one, the sureties are not discharged.

Pring v. Clarkson, 1 B. & C., 14. Twopenny v. Young, 3 B. & C., 208. Bedford v. Deakin, 2 B. & Ald., 210. Bell v. Banks, 3 M. & G., 258.

278. If the acceptor or any party is discharged by operation of law, as by the bankrupt Act, it does not discharge the sureties. Browne v. Carr, 7 Bing., 508. Langdale v. Parry, 2 D. & R., 337. Nadin v. Battie, 5 East, 147.

279. So if the creditor expressly agrees with the principal debtor that the sureties shall not be discharged, they are not.

See § 212.

280. If the creditor agrees with the principal debtor to give time to the surety, the surety is discharged.

Oriental Financial Co. v. Overend, Gurney & Co., L. R., 7 Ch.,

Ap., 142.

On Foreign Bills, and Bills drawn in Sets, Parts, or Copies. 281. An inland bill at common law is one both drawn and payable in one of the realms of the United Kingdom (a): though it may be accepted abroad (b).

(a) 9 & 10 Will. 3 (1699), c. 17. Mahoney v. Ashlin, 2 B. & Ad., 478.

(b) Amner v. Clark, 2 C. M. & R., 468.

282. A foreign bill is one which is drawn or payable abroad; or one drawn in one part of the United Kingdom and payable in another.

283. By Statute 19 & 20 Vict. (1856), c. 97, s. 17, all bills which are both drawn and made payable in any part of the United Kingdom of Great Britian and Ireland, the islands of Man, Guernsey, Jersey, Alderney, Sark, and the islands adjacent to them belonging to the British Crown are declared to be inland bills; except so far as relates to the stamp duties payable in respect of them.

Bills, Notes, and Cheques drawn or made in one part of the United Kingdom are therefore subject to the duties payable on foreign bills.

Griffin v. Weathersby, L. R., 3 Q. B., 753. Heywood v. Pickering, L. R., 9 Q. B., 428. Godfray v. Coulman, 13 Moo. P. C., 11. 284. Foreign Bills are often drawn in parts or copies, all the parts together making a set, and the whole set constituting one bill.

Each part is numbered and refers to the other parts, and contains a condition that it shall be paid as long as the others are unpaid.

The parts should properly circulate together, but one part may be sent to the drawee for acceptance, and another may be given. to the indorsee.

285. Every transferor ought to deliver over to his transferee all the parts in his possession: but if a subsequent transferee takes one part from his transferor without demanding the remaining parts, he cannot sue an indorser prior to his own who has not got them.

Pinard v. Klockman, 3 B. & S., 388.

286. The person who first acquires a title to one part of the bill is entitled to the other parts; and the payment of one part cancels and extinguishes the others.