"Messrs. Elsam & Co.

"June 9th, 1853.

"Gentlemen,—In consideration of your accepting our bill upon you for 4721. 10s., due the 7th of September next, we hereby engage to provide the funds for this bill on or before that date, as also to put you in cash to retire our bill upon Messrs. Denny & Co., for 4777. 188., due the 20th instant, on or before the 17th."

On the 4th of June, Evans accordingly drew upon the plaintiffs a third bill, for 4727. 108., at four months; and, having got it discounted, Evans, on the 18th of June, sent his clerk with a check for 4777. 188. to Elsam & Co.'s for the purpose of taking up the defendants' acceptance. Evans's clerk, who was called as a witness, stated that he laid the check upon Elsam's desk, and said "You will give me the bill as soon as you receive it;" and that Elsam nodded his head, and answered "Very well."

At this time the defendants' acceptance was in the hands of Overend, Gurney & Co., and Elsam went there and withdrew the bill. Evans's clerk afterwards applied to the plaintiffs for the bill, but they refused to give it up, claiming to be entitled to hold it as a collateral security for their acceptances of 5771. 188., due on the 29th of June, and 4721. 108., due on the 7th of October, both of which they in due course paid. *Evidence was given on both sides as to the mercantile meaning [*90 of the word "retire," in the memorandum of the 9th of June, 1853, the plaintiffs' witnesses stating, that, according to their understanding and experience, it meant, to withdraw the bill from circulation in so far only as the party paying the money was concerned,—the defendants' witnesses, on the other hand, alleging that it meant an absolute payment and discharge of the bill.

The Lord Chief Justice, being informed that the Lord Chief Baron had, in an action by Evans against Elsam to recover the bill now in question, held that the word "retire" meant an absolute payment of the bill, in deference to that opinion, ruled in like manner.

A verdict having been found for the defendants,

Byles, Serjt., on a former day in this term, obtained a rule nisi for a new trial, on the ground of misdirection.

Hawkins, in Hilary Term last, showed cause.-The question is whether there was any evidence to go to the jury in support of the plea. In this plea, the word "retire" must mean payment. [CRESSWELL, J. -Clearly it must: and, if there was no evidence of payment, the verdict cannot be supported.] If this bill had been withdrawn from the hands of Messrs. Overend, Gurney & Co. by an endorsee, that, as between them, would amount to payment; but it would be otherwise as between the endorsee and the other parties liable on the bill. «Retire" may mean several things: it may mean that the liability of all parties to the bill is to be discharged; or it may mean that the remedy over is to be VOL. XV.-11

:

retained, a withdrawal of the bill from circulation, without any absolute discharge. The evidence showed that the bill was not paid by Elsam & Co. with their own money; but that they were furnished with the money by *Evans, the drawer, in order that they might retire it, *91] and take it into their hands. Upon what terms they were to have it, was purely a question for the jury. As between Evans and Denny & Co., there can be no doubt that this was an accommodation acceptance: at all events, there was evidence upon that subject which was fairly for the jury. The agreement of the 9th of June contains not a word as to the bill being to be retained by Elsam & Co. as collateral security. The evidence of Evans's clerk shows, that, at the time they arranged with him for the withdrawal of the bill, Elsam & Co. did not set up any claim to retain the bill. In substance and in truth, the money which took the bill out of the hands of Overend, Gurney & Co., was Evans's money consequently, there was ample evidence to support the plea. Byles, Serjt., and Ball, in support of the rule.-There clearly was no evidence to go to the jury that the money was given to the plaintiffs upon the terms mentioned in the third plea. The original transaction was this: Elsam & Co. and Evans agreed to exchange acceptances. In pursuance of this agreement, Evans, on the 26th of February, 1853, drew upon Elsam & Co. a bill at four months for 4777. 188. ; and he also drew a bill for a similar amount upon Denny & Co. at three months from the 17th of March, 1853, which he endorsed and handed over to Elsam & Co. The bill accepted by Denny & Co. became due on the 20th, and that accepted by Elsam & Co. on the 29th of June. Before the first of these arrived at maturity, viz. on the 9th of June, in order to provide funds to meet Denny & Co.'s acceptance, Evans agreed with Elsam & Co. that they should accept a third bill, for 4727. 108., which he, Evans, would get discounted, for the purpose of enabling Elsam & Co. to withdraw Denny & Co.'s acceptance from circulation. Under these circumstances, retiring the bill could only mean withdraw*92] ing it from the hands of the party who held it, and getting it into the hands of the person who so retired it. What necessity could there be for making the payment through Elsam & Co., but that they should hold the bill for their security? It had originally been placed in their hands as security for their former acceptance. Why, then, should they not retain it as security for the substituted bill? The money handed to Overend, Gurney & Co. was neither Evans's money nor Denny & Co.'s: it was money raised upon Elsam & Co.'s acceptance, in order that they might not be out of cash by reason of the default of Denny & Co. Jones v. Broadhurst, 9 C. B. 173 (E. C. L. R. vol. 67), (a) shows that a payment by the drawer is not necessarily such a payment. as will enure to discharge the acceptor. Cur. adv. vult. JERVIS, C. J., now delivered the judgment of the court.

(a) And see Belshaw v. Bush, 11 C. B. 191 (E. C. L. R. vol. 73).

This was an action by the plaintiffs as endorsees, against the defendants as acceptors of a bill of exchange drawn by one Evans on the 17th of March, 1853, at three months, for the sum of 4777. 188., upon and accepted by the defendants. The defendants pleaded payment of the bill. At the trial before me in London, it was proved, that, on the 26th of February, 1853, Evans drew upon the plaintiffs a bill at four months, for 4771. 188., which they accepted for his accommodation, upon an understanding that he should give them in exchange an acceptance of the defendants' for the like amount. Evans took the plaintiffs' acceptance to the defendants, and, on the 17th of March, 1853, drew upon them, at three months, for 4777. 188., the bill now in suit, also, an *accommodation bill; which they accepted; and he handed it to the plaintiffs. This bill would become due on the 20th of June, nine days before that accepted by the plaintiffs. In the month of April, the defendants suspended payment, and the plaintiffs being anxious about the defendants' acceptance, it was proposed by the clerk of Evans, that Evans should draw upon them (the plaintiffs) another bill, for the purpose of providing funds to take up the defendants' acceptance. The plaintiffs agreed to this proposal, and, on the 9th of June, 1853, Evans wrote and sent to the plaintiffs the following letter::

[*93

"Gentlemen,-In consideration of your accepting our bill upon you for 4727. 108., due 7th of September next, we hereby engage to provide the funds for this bill on or before that date, as also to put you in cash to retire our bill upon Messrs. Denny & Co., for 4777. 18s., due the 20th instant, on or before the 17th."

Evans then drew upon the plaintiffs a bill, dated the 4th of June, for 4721. 108., at four months, which they accepted, and, on the 18th of June, sent his clerk to the plaintiffs with a check for 4777. 188., to take up the defendants' bill. The clerk laid the check upon the plaintiffs' desk, and said, "You will give me the bill as soon as you receive it." Elsam the plaintiff nodded his head, and said, "Very well." At the time when the plaintiffs received the check, the defendants' bill was in the hands of Messrs. Gurney & Co., from whom the plaintiffs received it upon payment of the amount. Evans's clerk afterwards applied to the plaintiffs for the bill, but they refused to give it up, saying that they had been advised by their friends to hold it as a collateral security. The plaintiffs paid their two acceptances for 4771. 188., and 4721. 108., as they became due. Evidence was given by the plaintiffs and the defendants to show the mercantile meaning of the word "retire," which occurs in the letter of the 9th of June. The plaintiffs' witnesses stated, *that, in their experience, the word "retire" meant, [*94 taking a bill out of circulation in so far as the party who paid the money was concerned; whereas the defendants' witnesses alleged that it meant an absolute payment of the bill. I was told, that, in an ac

tion by Evans against Elsam, to recover the bill now in suit, the Lord Chief Baron had held that the word "retire" in the letter meant an absolute payment of the bill: and, in deference to the high authority of that learned judge, I ruled the same way. My Brother Byles having objected to my summing up in this respect, the question was discussed during the last term, upon a rule to show cause for a new trial; and this court took time to consider their judgment, wishing to know the decision of the Court of Exchequer upon the point, and being anxious to be guided by their authority. The case of Evans v. Elsam has now been argued in that court; but, as the judges are not at present agreed in opinion upon the question, we must dispose of the rule in this court according to our own impression. We entertain no doubt upon the subject, and are of opinion that the rule should be made. absolute.

The question turns upon the construction of the letter of the 9th of June, and the meaning of the word "retire" in that instrument. This word is susceptible of various meanings, according as it is applied to various circumstances. If an acceptor retires a bill at maturity, he takes it entirely from circulation, and the bill is in effect paid; but, if an endorser retires it, he merely withdraws it from circulation in so far as he himself is concerned, and may hold the bill with the same remedies as he would have had, had he been called upon in due course, and had paid the amount to his immediate endorsee. We think this is the ordinary meaning of the word "retire," and we do not doubt that it was used in that meaning in the letter of the 9th of June, *95] because the undertaking is not that Evans will take up the bill himself with the proceeds of the plaintiffs' acceptance, but that he will put the plaintiffs in funds, that they may retire the bill.

Such being the meaning of the letter of the 9th of June, the subsequent conduct of the plaintiffs and Evans's clerk is immaterial, because the plaintiffs' second acceptance was obtained, and the funds procured as the produce of that acceptance, upon the faith of the letter of the 9th of June.

For these reasons we are of opinion that the rule must be made absolute. Rule absolute.

See Cochran v. Wheeler, 7 New Hampshire, 202; Kirksey v. Bates, 1 Alabama, 303; Bond v. Storrs, 13 Connecticut, 412. When a bill of exchange, payable to A., is taken up by the drawer, and the endorsement of A. stricken out, it becomes dead to all intents and purposes as a negotiable instrument: Price v. Sharp, 2 Iredell,

417. A bill of exchange, promissory note, or order made payable to a particular person, which has been paid by one whose duty it was to make the payment, without any right to call upon another party to repay the amount, is no longer a valid contract. It has performed its office, and ceases to have a legal existence. But this principle does

not hold good as to a bank note, which is not a contract with any particular person, but with any one who may become the bearer or holder of it: Ballard v. Greenbush, 24 Maine, 336. Recovery of judgment against the maker has the same effect as payment: Brown v. Foster, 4 Alabama, 282; Sawyer v. Bradford, 6 Ibid. 572. The endorse

ment of a bill by the payee to the acceptor, operates to discharge the liabilities of all parties to it, and no action can afterwards be maintained upon it as a bill of exchange. Its negotiability is destroyed, and cannot be revived by the acceptor endorsing it to a third person: Beede v. Real Estate Bank, 4 Pike, 546.

CHILTON, Assignee of WILLIAM PHILIP MASTERS CROFT, an Insolvent Debtor, v. CARRINGTON and WHITEHURST. June 9. By agreement between A., a publican, and B., a brewer, it was stipulated that A. should deposit the lease of his house with B., as security for an advance of 150l., for which A. had given B. a promissory note, payable on demand; and B. engaged not to call upon A. to pay 1507., or any part thereof, for two years, upon condition that the interest thereon should be duly paid halfyearly, that the rent should be paid agreeably to the covenants of the lease, and that A. should take of B. all the beer consumed upon the premises, and pay for it every twenty-eight days. The agreement then provided, that, in case of failure on the part of A. to perform any or either of the above conditions, after fourteen days' notice, B. should be at liberty immediately to put the note in force, and if not paid, with interest, to sell the lease; and that all expenses attending such sale, together with the principal and interest due on the note, should be deducted from the amount realized by such sale, as also any account that might be then due and owing for

beer :

Held, that, the power of sale not having been exercised,- -on payment, or tender, of the principal and interest due on the note, A. (or his assignee) was entitled to maintain detinue for the lease; and that B. could not set up a lien on it for a balance due on the beer account.

THIS was an action of detinue. The declaration stated, that the defendants, after the estate and effects of the said insolvent were vested in the plaintiff as assignee as aforesaid, and before the commencement of this suit, detained from the plaintiff, as assignee as aforesaid, the goods and chattels of the plaintiff, as assignee as aforesaid, that is, a lease of premises in Great Windmill Street, Haymarket, and licenses to sell beer, spirits, and liquors, and converted to the defendants' own use, or wrongfully deprived the plaintiff, assignee as aforesaid, *of [*96 the use and possession of the said goods and chattels of the plaintiff, as assignee as aforesaid; and, by reason of the premises, and before this suit, the plaintiff, as assignee as aforesaid, was prevented from selling, and lost divers opportunities of selling, on advantageous terms, the said premises, and was prevented from obtaining and receiving certain sums and prices for which he had sold the same, and was prevented from completing a sale thereof and conveyance thereof to James Ward, and from receiving large sums and prices from him; and by reason also of the premises, and of the inability of the plaintiff, occasioned by the defendants' wrong as aforesaid, to complete the said sale, the plaintiff, as assignee as aforesaid, was obliged to keep persons