The case of Bacon v. Searles, 1 H. Blac. 88, was cited; and it must be admitted, that, in that case, according to the report, it was held that the endorsee of a bill, who had received from the drawer a part of the amount of the bill, was entitled to recover from the acceptor only the *balance; and Lord LOUGHBOROUGH, then chief justice, is re[*184 ported to have said, "that, if the drawer of a bill anticipates the acceptor, and pays the money himself, he thereby releases the acceptor from his undertaking:" and he adds: "so that, if the acceptor were to pay the bill after notice given to him that the drawer had already paid it, an action would lie for the drawer against the acceptor, to recover back the money so paid." Lord LOUGHBOROUGH concludes his judgment by saying," Another reason which weighs much with me, is, the great mischief which would ensue to merchants, among whom accommodation bills are circulated to a vast extent, if, after a bill had been taken up by the drawer, the acceptor should be called upon for payment." The report of this case is not satisfactory. Lord LOUGHBOROUGH is made to say, that, if the drawer anticipates the acceptor, and pays the money himself, he thereby releases the acceptor from his undertaking: and yet he is said to have added, "that, if the acceptor were to pay the bill, after notice given to him that the drawer had already paid it, an action would lie for the drawer to recover it back again;" which, as applied to the facts of the case, is not very intelligible. If it was meant, that, supposing the drawer should sue the acceptor upon the bill, the acceptor could not plead in bar the payment to an endorsee, after notice that the drawer had paid it, it is intelligible, but not, upon the facts stated, very satisfactory. The point in judgment, was, whether an endorsee, after having received payment of part of the bill from the drawer, was entitled, in an action against the acceptor, to recover the whole amount of the bill, or only the balance of the bill remaining unpaid; and it was held that the balance only was recoverable. As a decision upon that point, it has been overruled. The observations made by the judges, render it uncertain whether it was the case of a bill for *value, or an accommodation bill: but those observations are of doubtful accuracy, [*185 in either view of the case. If it was a bill for value, the remark is not correct, that payment by the drawer discharged the acceptor from his promise; because the acceptor in such a case would be clearly liable to the drawer, who, by his payment to the endorsee, would become entitled to sue the acceptor upon the bill: and, if it was the case of an accommodation bill, the remark is unintelligible, that if the acceptor, who would be surety only for the drawer, was to pay the bill after notice, the drawer, who was the principal debtor, might recover the money back again from the acceptor, his surety.

It may be that what was intended to be said, was, that such a payment by the acceptor would make the endorsee a trustee for the drawer,

and liable to refund to him what should be paid by the acceptor: but it is by no means clear that this was intended to be said, because the remarks refer to the acceptor's liability to refund, in terms, and speak of a payment by the acceptor, after notice of payment by the drawer,— which would be quite immaterial, upon the question whether the endorsee would become a trustee for the drawer, in regard to the sum received from the acceptor. The doubt whether it was the case of a bill for value, or an accommodation bill, is increased by the observations of Mr. Justice WILSON, who referred to a case of Beck v. Robley.(a)

Considering this case of Bacon v. Searles with *reference to *186] the point decided,-that part of a bill (accepted for value) being paid by a drawer or endorser, disentitles the endorsee to recover from the acceptor more than the balance remaining unpaid,-it has been overruled by modern decisions, and is not now to be deemed to be law: and, if it is to be considered as the case of an accommodation bill, it is inapplicable to the questions which arise upon this plea.

Mr. Justice WILSON referred to the case of Beck v. Robley, reported in a note to Bacon v. Searles, and which, it would seem from the statements in the report, was the case of an accommodation bill. The facts were these:-Brown drew the bill upon Robley, payable to Hodson, and gave the bill to Hodson as security for an advance made to him by Hodson. Robley accepted the bill, and Brown, the drawer, took it up when due, in Hodson's hands, and received back the bill with Hodson's endorsement upon it. Brown, after the bill had become due, paid it to Beck, who brought the action against Robley. The action was held not to be maintainable; and correctly so; as, after the bill had become due, the drawer could only negotiate it subject to such equities as existed against him; and, it being an accommodation bill, Brown, the drawer, could not have sued the acceptor, and so neither could a subsequent holder claiming under him after the bill had become due. decision against the plaintiff, therefore, would have been correct, irrespectively of another fact relied upon in that case, viz. that Beck, the plaintiff, was compelled to claim through the endorsement of Hodson, the payee and the court was confirmed in its decision against the plaintiff, upon the ground, that, if effect were given to Hodson's endorsement under the circumstances, Hodson himself might be rendered liable, a result which ought not to occur. It is unnecessary to consider the correctness of that opinion: but both the cases of Bacon v. Searles and Beck v. Robley would be well decided, if the bills *187] upon which those actions were brought were accommodation bills; and Beck v. Robley, in that event, might be considered as an authority for the determination of Bacon v. Searles.

The

(a) Note to Bacon v. Searles, 1 H. Blac. 89, n.; Bayley on Bills, 125. In Beck v. Robley, A. drew a bill on the defendant, payable to B. or order. The bill not being paid at maturity, B. returned it to A., who took it up, B.'s endorsement remaining thereon. A. gave the bill as a security to the plaintiff, informing him of the circumstances. It was held that the bill was extinguished by being taken up by the drawer, and could not be again negotiated.

Upon Bacon v. Searles being cited as an authority, in Purssord v. Peek, 9 M. & W. 196,† as deciding that a payment by the drawer of a bill discharged the acceptor pro tanto, Lord ABINGER, C. B., said, that, "if that were the principle of that case, it might be a question whether, if it were now considered, it would not be overruled."

The case of Johnson v. Kennion, 2 Wils. 262, was cited as an authority, on the part of the plaintiffs, that the contract created by the bill, could not be severed and made the ground of two actions, and that the holder must bring an action for the whole, and be considered trustee for the drawer, for so much as he had paid. Mr. Justice WILSON is said to have referred to the case of Beck v. Robley, as contrary to that position: but it is not obvious that such is the effect of Beck v. Robley. Johnson v. Kennion, however, distinctly decided that the endorsee was entitled to recover the whole amount of the bill, although he had received a part from the drawer: and, unless Bacon v. Searles and Beck v. Robley were distinguishable, upon the ground of the actions being upon accommodation bills, it does not appear how the authority of Johnson v. Kennion was avoided.

Assuming, however, Bacon v. Searles and Beck v. Robley to be authorities that the acceptor of a bill for value, is discharged altogether, or pro tanto, by payments made by a drawer or endorser, to an endorsee, who afterwards sues the acceptor, they cannot be considered as binding authorities; and they are inconsistent *with Callow v. Lawrence, 3 M. & Selw. 95, where the continued liability of the acceptor [*188 is distinctly determined; and Hubbard v. Jackson, 1 M. & P. 11 (E. C. L. R. vol. 17), S. C. 4 Bingh. 390 (E. C. L. R. vol. 13, 15), 3 Carr. & P. 134 (E. C. L. R. vol. 14), is a decision to the same effect, following the authority of Callow v. Lawrence: and, in both cases, Beck v. Robley was treated as a decision upon the ground that the plaintiff could not claim through Hodson's endorsement.

Pierson v. Dunlop, 2 Cowp. 571, was an action against the acceptor of a bill for 3001. The drawer having paid 1807., the plaintiffs took a verdict for the whole amount, which the court compelled them to reduce, at their own cost. There can be little doubt that this also was the case of an accommodation bill; as it appears, that, after the verdict, a bill in equity was filed to obtain a discovery of the payment, and reduction of the verdict; and, if the cestui que trust of the plaintiffs was not entitled to receive the 1807., the court, in its equitable jurisdiction, could not have permitted their trustee to recover it. The case would resolve itself into that of a payment by the principal debtor, in ease of the surety.

In the case of Walwyn v. St. Quintin, 1 B. & P. 652, the plaintiffs were required to give the acceptor credit for the amount of the payment made by the drawer, the court holding the bill to be an accommodation bill.

The several other cases which were cited on the part of the defendant, are no authorities for the purpose for which they were cited: indeed, they are rather against him.

In Purssord v. Peek, 9 M. & W. 196,† the court held that the plea was bad for duplicity: it alleged that the defendant, the acceptor of a bill of exchange, had accepted it *for the accommodation of the

*189] drawer, and that the drawer had satisfied the bill; and it further

stated, that, at the time of the action, the plaintiff was a holder of the bill without consideration or value.

Reynolds v. Blackburn, 7 Ad. & E. 161 (E. C. L. R. vol. 34), 2 N. & P. 137, was an action by endorsee against the acceptor of an accommodation bill; and the plea alleged, by way of discharge, notice to the plaintiff, and that, after such notice, he received other bills from the drawer, and agreed to give time upon the bill sued upon, until such other bills should become due, and be dishonoured: the plea proceeded to state that the bills were so delivered and accepted in payment of the bills in the declaration, and that the agreement was made without the defendant's knowledge, privity, or assent. The plaintiff replied de injuria; to which the defendant demurred, for duplicity. The court said the replication was as good as the plea, which had set up two defences, and gave judgment for the plaintiff.

Sard v. Rhodes, 1 M. & W. 153,† Tyrwh. & Gr. 298, 4 Dowl. P. C. 743, 1 Gale, 376, was also an action against the acceptor of an accommodation bill, in which the defendant pleaded, that the bill was an accommodation bill, and that the drawer had given another note, for a larger sum, in payment and satisfaction, which the plaintiff had accepted. The plaintiff replied, that the note so given was dishonoured. The defendant demurred, and the replication was held ill, and the plea good.

In each of the three last-mentioned cases, the pleas alleged the bills to be accommodation bills,-showing what is now understood to be the law in regard to payments or arrangements between subsequent parties to the bill; which can have little application to the present case, which is that of a bill accepted for value.

*Field v. Carr, 5 Bingh. 13 (E. C. L. R. vol. 15), 2 M. & P. *190] 46 (E. C. L. R. vol. 17), is also inapplicable: it was an action by bankers, as endorsees, against the acceptor; the drawer having delivered the bills to the plaintiffs, his bankers, as security, and the acceptor having paid the amount of the bills to the drawer without obtaining the bills, which remained in the hands of the bankers: and the point really in contest, was, whether, upon the application of the rule in Clayton's case, 1 Meriv. 572, 604, the bills, as against the bankers, the plaintiffs, were to be considered as satisfied: the court held that they ought to be so considered.

The case of Thomas v. Fenton, 5 D. & L. 28, was argued before Mr.

Justice COLERIDGE. It was an action against the drawer of an accommodation bill; and it appeared, that, the bill being dishonoured, an action had been brought by one Clark, against the acceptor, and that the plaintiff, as a volunteer,-being the son-in-law of the acceptor,had paid the debt and costs, and obtained the bill from the then plaintiff, with the defendant's endorsement upon it, and brought the present action upon the bill. One question was, whether the bill ought to be deemed an accommodation bill. A further question was, whether there was a sufficient dispensation of giving notice of the dishonour; also, whether the payment which had been made, supported the plea of payment by the acceptor. An objection was also made, that the bill required a new stamp. Mr. Justice COLERIDGE held that the bill did not require a new stamp, inasmuch as it had never been paid,-payment meaning payment by the party ultimately liable, and the payment in question not being such a payment. He also held, that sufficient excuse was alleged for not giving notice, the bill being an accommodation bill. And the learned judge *distinctly intimates that payment by an intermediate party is no discharge to the acceptor.

[*191 Hemming v. Brook, Carr. & Marsh. 57 (E. C. L. R. vol. 41), was an action against the acceptor, where the drawer had paid part of the bill. The cause was undefended: the counsel for the plaintiff was instructed as to the payment, but altogether uninformed whether the bill was an accommodation bill, and of every other circumstance respecting it. The judge, therefore, recommended that a verdict should be taken, giving credit for the payment.

Pownal v. Ferrand, 6 B. & C. 439 (E. C. L. R. vol. 13), 9 D. & R. 603 (E. C. L. R. vol. 22), determined that the endorser of a bill, paying a part of the bill to the holder, might recover from the acceptor the amount so paid, as money paid to his use. It is to be observed, that the plaintiff in that case had paid 407. on account of a bill endorsed by him, and which had been accepted by the defendant, for 3501. After the payment of 401. by the plaintiff, the holder of the bill brought an action upon the bill against the defendant, the acceptor, and recovered a verdict for the whole amount of the bill, 350l., but afterwards levied the balance only due to him, giving credit for the 401. which the plaintiff had paid: and, in consequence of the defendant's having thus derived the benefit of the plaintiff's payment, the action was brought by the plaintiff, to recover the amount as money paid to the defendant's use, when it was contended that the plaintiff could only sue upon the bill but the court held, that there might be a difficulty in suing upon the bill, by reason of a judgment having been recovered against him for the whole amount of the bill, by a former holder; and that, the defendant having had the benefit of the payment, an action for money paid might be maintained.