been accepted, such bills being made payable at a place other than the place mentioned therein to be the residence of the drawees, it was for the removal of such doubts enacted, by stat. 2 & 3 W. 4. c. 98. [9th August, 1832,] that all bills of exchange wherein the drawers shall have expressed that such bills are to be payable in any other place by them therein mentioned to be the residence of the drawees, and which shall not on the presentment for acceptance thereof be accepted, shall or may be, without further presentment to the drawees, protested for non-payment in the place in which such bills shall have been by the drawers expressed to be payable, unless the amount owing upon such bills shall have been paid to the holders on the day on which such bills would have become payable had the same been duly accepted. Bills of exchange had been occasionally accepted, supra protest for honour, or had a reference thereon in case of need; doubts having arisen as to the day on which it was requisite to present for payment such bills to the acceptors for honour, or referees, by stat. 6 & 7 W. 4. c. 58. s. 1. (13 Aug. 1836,) it was declared and enacted, that it shall not be necessary to present such bills to such acceptors for honour, or to such referees, until the day following the day on which such bills shall become due; and if the place of address on such bill, or such acceptance for honour, or such referee, shall be in any city, town, or place, other than in the city, &c. where such bill shall be therein made payable, then it shall not be necessary to forward such bill for payment until the day following the day on which such bill shall become due; and by s. 2. if the day following the day on which such bill shall become due shall be Sunday, Good Friday, or a Fast or Thanksgiving, then the day following such Sunday, &c. will be sufficient. The holder of a check is not bound to give notice of its dishonour to the drawer, for the purpose of charging the person from whom he received it. It is sufficient, if he presents it with due diligence to the bankers on whom it is drawn, and gives due notice of its dishonour to those only against whom he seeks his remedy.-If a banker in London receives a check, by the general post, one day, and presents it for payment the next day, he will be considered as having used due diligence. Where a check drawn by a customer on a banker, for a sum of money described in the body of the check in words and figures, was afterwards altered by the holder, who substituted a larger sum for that mentioned, but in such a y Rickford v. Ridge, 2 Campb. 537. manner that no person in the ordinary course of business could observe it, and the banker paid to the holder, this larger sum; it was holden2, that the banker could not charge the customer for any thing beyond the sum for which the check was originally drawn. But where a customer of a banker delivered to his wife certain printed checks signed by himself, but with blanks for the sums, requesting his wife to fill the blanks up according to the the exigency of his business, she caused one to be filled up with the words, fifty pounds, two shillings, the fifty being commenced with a small letter and placed in the middle of the line-the figures, 50l. 28. were also placed at a considerable distance from the printed £. In this state the wife delivered the check to her husband's clerk to receive the amount; instead of which he inserted at the beginning of the line in which the word fifty was written, the words three hundred and, and the figure 3 between the £ and the 50%. The bankers having paid the 3501. 28.; it was holden, that the loss must fall on the customer; for it was the fault of the customer; who ought to have selected for the care of such a check a person conversant with business as well as trustworthy, who would have guarded against fraud in his mode of filling up the check. VII. Of the Acts of the Holder whereby the Parties to the Bill may be discharged. IF the holder enter into a composition with the acceptor, he thereby discharges the indorserb. So if the indorsee receive part payment from the acceptors, and take from him a security for the remainder, with the exception of a nominal sum, the indorser is discharged. Receipt of part of the money from an acceptor will not discharge the drawer, if timely notice be given that a bill is not duly paid. Bull. N. P. 271. The receipt of part of the sum mentioned in the bill from the drawer, will operate as a discharge to the acceptor, only pro tanto. Bacon v. Searles, 1 H. Bl. 88. Notwithstanding the z Hall v. Fuller, B. & C. 750. a Young v. Grote, 4 Bing. 253. c English v. Darley, 2 Bos. and Pul. 61. See the opinion of Eldon, C. J. receipt of part from the indorser, the holder may recover the whole amount of the bill from the drawer. Johnson v. Kenyon, 2 Wils. 262. Walwyn v. St. Quintin, 1 Bos. and Pul. 652. Where the holder, after receiving part payment from the acceptor, agreed to take a new acceptance from him for the remainder, payable at a future date, and that in the mean time the holder should keep the original bill in his hands as a security; it was holden, that such agreement amounted to giving time and a new credit to the acceptor, and discharged the indorser, who was not a party to such agreement. But a mere forbearance to sue the acceptor after protest for non-payment, and notice, or what is equivalent to notice, thereof to the drawer, will not discharge the drawere. If the executor of the acceptor verbally promise to pay the holder out of his own estate, provided the holder forbear to sue, and he forbears accordingly, the drawer is not thereby discharged, inasmuch as the promise of the executor, not being in writing, is void by the statute of frauds, and, consequently, the holder does not derive from such promise any better security than the bill had given him. Philpot v. Briant, 4 Bingh. 717. A bill of exchange having been dishonoured, the acceptor transmitted a new bill for a larger amount to the payee, but had not any communication with him respecting the first. The payee discounted the second bill with the holder of the first which he received back as part of the amount, and afterwards, for a valuable consideration, indorsed it to plaintiff: it was holden, that the second bill was merely a collateral security, and that the receipt of it by the payee did not amount to giving time to the acceptor of the first bill so as to exonerate the drawer. The cases ex-parte Smith and English v. Darley, seem to have proceded on a principle of law resulting from the relation in which the acceptor of a bill of exchange may be considered as standing with respect to the other parties. Although by his acceptance he only undertakes to pay the debt of another, viz. of the drawer, yet is he primarily liable; for it is incumbent on the holder of the bill to resort to him in the first instance. Under this view, although his engagement is really only a collateral engagement, yet he may be considered as the principal debtor, and the remaining parties as sureties only. Now, in the case of simple d Gould v. Robson, 8 East, 576. Quintin, 1 Bos. and Pul. 652. fully stated, ante, p. 358. f Pring v. Clarkson, 1 B. and C. 14. contracts, if a creditor give time to the principal debtor (14), the collateral sureties are discharged both in law and equity, because the creditor cannot call on the other parties without an injury to the person to whom he has given time. If holder of a bill of exchange, accepted for the accommodation of the drawer, takes a cognovit from the drawer for payment by instalments, he does not thereby discharge the acceptor; whether the holder, at the time of taking the bill, knew it was an accommodation bill or noth. H. accepted a bill for the accommodation of B. the drawer, who indorsed it over as a security for a debt, and afterwards became bankrupt. The indorsee entered into an agreement with the assignees for purchasing part of the bankrupt's property, and for the arrangement of some claims, which he, the indorsee held upon the estate, and he afterwards gave them a release of all demands, no mention being made of the bill which had been dishonoured. He knew at the time of the agreement, but not when he took the bill, that it was accepted for accommodation. It was holden', that the acceptor was liable. One of the makers of a joint promissory note may shewk that he was a mere surety for the other party and so known to the payee, and that the payee had taken a composition from the principal debtor, without his (the surety's) consent. The doctrine laid down in ex-parte Smith and English v. Darley, must be confined to those cases in which the agreement between the holder and acceptor is made without the consent of the other parties to the bill, for otherwise they will not be discharged. This appears from the case of Clark and others executors of Males v. Devlin, 3 Bos. and Pul. 363, in which it was adjudged, that the drawer of a bill, who had g Per Chambre, J. 3 Bos. and Pul. 366. h Fentum v. Pocock, 5 Taunt. 192, 10 B. & C. 578, and Yallop v. Ebers, 1 B. & Ad. 703. Fentum v. Pocock was recognized in Nichols v. Norris, 3 B. & Ad. 41, n. i Harrison v. Courtauld, 3 B. & Ad. 36. k Hall v. Wilcox, 1 M. and Robinson, 58. (14) Without any reserve of the remedy against the sureties, per Lord Eldon, Ch. ex-parte Gifford, 6 Vesey, 807. Boulton v. Stubbs, 18 Ves. 21. See also Orme v. Young, Holt's N. P. C. 84, recognized in Combe v. Woolf, 8 Bingh. 156, and Dunn v. Slee, Holt's N. P. C. 399, in which last case it was holden, that time given to a surety, without the privity of the co-surety, would not discharge the cosurety. assented to the holder's taking a security from the acceptor, was, notwithstanding such security, liable to an action at the suit of the holder. The holder of a bill, on its becoming due, allowed the acceptor to renew it without consulting the indorser: but the indorser afterwards meeting the acceptor, told him that it was the best thing that could be done; it was holden that this was not a recognition of the terms granted by the holder to the acceptor, and that the indorser was discharged'. The holder may sue a prior indorser, although he has taken in execution a subsequent indorser, and afterwards let him go at large on a letter of license, without having paid the debt. In a casem where an action was brought by several partners, as indorsees of a promissory note against the defendant as indorser, and it appeared in evidence, that one of the partners had discharged a prior indorser, by a deed of composition; it was holden, that such deed operated as a release to the defendant (15). But where the indorsee of a note made 1 Withall v. Masterman and Co., 2 Campb. 179. m Hayling v. Mulhall, 2 Bl. R. 1235. (15) "If a holder enter into an agreement with a prior indorser in the morning, not to sue him for a certain period of time, and then oblige a subsequent indorser in the evening to pay the debt, the latter must immediately resort to the very person for payment to whom the holder has pledged his faith that he shall not be sued. In the case exp. Smith, Lord Thurlow, after consulting with all the judges, was of opinion, that the holder of a bill by entering into a composition with the acceptor, discharged the indorser, and accordingly ordered the proof against the estate of the latter to be expunged, proceeding on the ground of the acceptor's liability being varied by the act of the holder. We all remember the case where Mr. Richard Burke being security for an annuity, the grantee gave time to the principal, and yet argued that Mr. Burke was not relieved thereby, though the principal was; but it was answered that the grantee could make no demand upon the surety, because he must, by so doing, enforce a payment from the principal, contrary to the agreement." Per Lord Eldon, C. J. in English v. Darley, 2 Bos. and Pul. 62. See also Bank of Ireland v. Beresford and another, 6 Dow. 234. In the foregoing cases, the act done by the creditor is his own act, over which the surety has not any control; and the injury which the surety would receive, is one which he has not any mode of preventing. But a surety for a bankrupt is not discharged by the creditor's signing the bankrupt's certificate, even after notice, from the surety not to do so: "It is the duty of the surety to pay the debt; and if he de |