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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 bankrupts 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. 10 B. & C. 578, and Yallop v. Ebers,
See also Rees v. Berrington, 2 Ves. I B. & Ad. 703. Fentum v. Pocock Jun. 540. and Nisbet v. Smith, 2 Bro. was recognized in Nichols v. Norris, Ch. C. 579.
3 B. & Ad. 41, n. h Fentum v. Pocock, 5 Taunt. 192, i Harrison v. Courtauld, 3 B. & Ad. 36.
overruling Laxton v. Peat, 2 Campb. k Hall v. Wilcox, 1 M. and Robinson, 185. See also Raggett v. Axmore, 4 Taunt. 730. Price v. Edmunds,
(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
I Withall v. Masterman and Co., 2 m Hayling v. Mulhall, 2 Bl. R. 1235. Campb. 179.
n Ellison and others v. Dezell, Bristol
Sum. Ass. 1811, MS.
(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 Kot 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
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
by the defendant for the accommodation of the payee and indorser covenanted not to sue the payee and indorser, it was holden, that the defendant could not avail himself of this covenant, in an action brought against him by the indorsee, although the defendant, by the verdict against him in this action, would have a right to recover over against the payee and indorsero. The holder sued the acceptor, and charged him in execution P; the latter obtained his discharge under the Lords' Act; the holder then sued the drawer, and recovered the amount of the bill, whereupon the drawer sued the acceptor, and charged him in execution; this was holden regular, for although the discharge of the acceptor, under the Lords’ Act, was a satisfaction of the debt as to the holder, yet it would not operate as such between the drawer and acceptor.
VIII. Of the Action on a Bill of Exchange—Pleading under
the new Rules—Evidence-Recovery of Interest.
A Bill of exchange being a simple contract, the form of action, which is adopted for the recovery of the sum of money mentioned in the bill in case of non-acceptance or non-payment, is a special assumpsit. Formerly the declaration extended to a great length, but under the new rules T. T. i W. 4, concise forms are given on notes and inland bills, according to the principle of which, declarations on foreign bills may be drawn with the necessary variations. See these forms. "The frequent nonsuits, which used to occur on the ground of variances between the instrument as set forth in the declaration, and that produced in evidence have been greatly obviated by
o Mallet v. Thompson, 5 Esp. N. P.C. p Macdonald v. Bovington, 4 T. R. 178.
825. cited in English v. Darley, 2 Bos. and Pul. 61.
clines so doing, and thereby permits the creditor to prove, the signing the certificate of conformity, which is a power given to the proving creditor, cannot be considered as an act done by the creditor, which altered the surety's right without his control, and scarcely indeed, without his consent.” Per Tindal, C. J. delivering judgment. Browne v. Carr, 7 Bingh. 508.
the stat. 9 G. 4. c. 15. post, under tit. Covenant, non est factum. Where the acceptance was written before the bill was drawn, and the declaration described the transaction in the usual order of time, viz. the drawing first, and then the acceptance; this was holden9 not to be a variance. And so with respect to an indorsement, whether made beforer bill drawn, or afters bill became due.
By stat. 1 and 2 Geo. 4. c. 78. s. 1. if any person shall accept a bill payable at the house of a banker, or other place, without further expresssion in his acceptance, such acceptance shall be deemed, to all intents and purposes, a general acceptance of such bill; but if the acceptor shall, in his acceptance, express that he accepts the bill payable at a banker's house or other place only, and not otherwise or elsewhere, such acceptance shall be deemed to be to all intents and purposes a qualified acceptance, and the acceptor shall not be liable to pay the said bill, except in default of payment, when such payment shall have been duly demanded at such banker's house or other place. Since this statute it has been adjudged, that the holder of a bill accepted, payable at a banker's, but omitting the words “there only,” is not bound to present it at the banker's, and consequently is not guilty of laches, if he omits to do so; and may still recover against the acceptor, in the event of the banker's failure, although a considerable time, e. g, three weeks have elapsed since the bill became due, during all which time the acceptor had funds in the banker's hands, exceeding the amount of the bill. Turner v. Hayden, 4 B. and C. 1. In such case no averment or proof of presentment for payment at the place mentioned is necessary. Selby v. Eden, 3 Bingh. 611. Fayle v. Bird, 6 B. and C. 531. See also Hawkey v. Borwick, 4 Bingh. 135. But in an action against the drawer of a bill (payable at a particular place, where the drawer accepts it payable at that place,) on the ground of non-payment by the acceptor, it is necessary to prove a presentment to the acceptor at that place; for the statute neither intended to alter, nor has it altered, the liability of drawers; but is confined in its operation to acceptors only. Gibb v. Mather, 8 Bingh. 214. 2 Cr. and J. 254. S. C.
A conditional acceptance cannot be declared on as an absolute acceptance, even after condition performedt. In action on a bill against an acceptor for the honour of the drawer, it must be alleged, that when the bill arrived at maturity, it was presented to the drawee for payment. And this rule holds, whether the bill be a bill payable after dates or after sight. Where a bill has been accepted by the drawee, if another person accepts it also for the purpose of guaranteeing the first acceptor, the second acceptance is merely a collateral undertaking, and must be declared on" as such; for there is not any custom of merchants authorizing a series of acceptors.
q Molloy v. Delves, 7 Bingh. 428.
s Young v. Wright, 1 Campb. 139.
In Heys v. Heseltine, and another, where it was averred that the defendants accepted the bill, and the acceptance was by an agent thus, "for Heseltine and Co. John Wilson:” Lord Ellenborough was of opinion, that the evidence supported the declaration; observing that if the defendants accepted the bill by an agent, in contemplation of law, they accepted it themselves: and it was a general rule in pleading, that facts might be stated according to their legal effect.
When the action is brought between the immediate parties to the bill, it is usual to subjoin such counts as will embrace the consideration for which the bill has been given: for as the bill does not merge the original demand, if the plaintiff fail in substantiating in evidence the special count, he may resort to evidence on the common counts. Under the new rules, counts upon a bill or note, and for the consideration, in goods, money, or otherwise, are considered as founded on distinct subject matters of complaint. In Alves v. Hodgson, 7 T. R. 241. where the plaintiff had declared specially on a written contract made in Jamaica, and on a quantum meruit, and was prevented from establishing the special count, because the contract, by the laws of the island of Jamaica, was void for the want of a stamp; it was holden that he might recover on the quantum meruit. So where a promissory note had been given for money lent, which when produced in court was unstamped, Lord Kenyon, C. J. permitted the plaintiff to recover on a common count for money lent, by proving that when the money, for which the note had been given, was demanded of the defendant, he acknowledged the debt. Tyte v. Jones, 1 East's R. 58. n. (a) Wilson v. Kennedy, 1 Esp. N. P. C. 245. S. P. In cases of this kind, if the defendant call for a particular of the plaintiff's demand, the causes of action in the general counts ought to be stated in the particular, otherwise the plaintiff will not be permitted to go into evidence on them. Wade v. Beasley, 4 Esp. N. P. C. 7. Kenyon, C.J. If the plaintiff's particular conveys the requisite information to the defendant, however inaccurately it
s Hoare v. Cazenove 16 East, 191.
u Jackson v. Hudson, 2 Campb. 447.