So if the indorsee receive part payment from the acceptor, and take from him a security for the remainder, with the exception of a nominal sum, the indorser is discharged (58).

So where the holder, after receiving part payment from the acceptor P, 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 drawer 9.

The cases ex-parte Smith, and English v. Darley, seem to have proceeded 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 contracts, if a creditor give time to the principal debtor (59), 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.

o English v. Darley, 2 Bos. and Pul.
61. See the opinion of Eldon, C. J.

p Gould v. Robson, 8 East, 576.
q 2d. Resolution in Walwyn v. St.
Quintin. 1 Bos. and Pul. 652. fully
stated, ante, p. 344.

r

Per Chambre, J. 3 Bos, and Pul. 366. See also Rees v. Berrington, 2 Ves. Jun. 540. and Nisbet v. Smith, 2 Bro. Ch. C. 579.

(58) 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 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.

(59) Without any reserve of the remedy against the sureties, per Lord Eldon, Ch. ex-parte Gifford, 6 Vesey, 807.

If the 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 not..

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, C. B. E. 43 Geo. 3. 3 Bos. and Pul. 363. in which it was adjudged, that the drawer of a bill, who had 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 licence, without having paid the debt. In a case 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* (60). But where the indorsee of a

s Fentum v. Pocock, 5 Taunt. 192. overruling Laxton v. Peat, 2 Camp. N. P. C. 185. See also Raggett v. Axmore, 4 Taunt. 730.

t Withall v. Masterman and Co.,
2 Camp. N. P. C. 179.

u Hayling v. Mulball, 2 Bl. R. 1235.
x Ellison & others v. Dezell, Bristol,
Sum. Ass. 1811. M. S.

(60) "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 ex p. 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

note made 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 payce and indorser".

The holder sued the acceptor, and charged him in execution; 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 Lord's 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-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; and, consequently, the rule laid down in the third section of the chapter on assumpsit, ante p. 100, applies here, viz. that the declaration must state the contract, (which in this case is the bill,) truly and correctly, that is, either in the terms in which it was made, or according

y Mallet v. Thompson, 5 Esp. N. P.

C. 178.

z Macdonald v. Bovington, 4 T. R.

825. cited in English v. Darley, Bos. and Pul. 61.

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 surety 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. & Pul. 62.

to the legal effect and operation of those terms; for a variance in any material point between the contract alleged, and the contract proved, will be fatal. As where the declaration stated the bill to be drawn by John Crouch", and upon the production of the bill in evidence, it appeared to have been drawn by John Couch, it was holden, that the variance was fatal.

It will be sufficient, however, to state the instrument according to its legal effect and operation.

As where a bill of exchange was payable to a fictitious payee or order, and indorsed in the name of such fictitious payee by agreement between the drawer and acceptor, it was holden that an innocent indorsee, for a valuable consideration, might declare on such bill as payable to bearer, either against the drawer, or against the acceptor of the bill (61).

с

If it is alleged in the declaration, that the defendant on such a day drew a bill of exchange, a variance between the day laid in the declaration, (although not under a viz.) and the date of the bill will be immaterial; but if it be alleged that defendant, on such a day, made his bill of exchange, bearing date the same day and year aforesaid, then a variance between the days will be fatal.

In an action upon a bill of exchange, it is not necessary to set forth the custom; for lex mercatoria est lex terræ, and although plaintiff sets it forth, and does not bring his case

a Whitwell v. Bennett, 3 Bos. and d Coxon v. Lyon, York Lent Ass.1810. Pul. 559.

b Collis v. Emett, 1 H. Bl. 313.

c Gibson v. Minet, 1 H. Bl. 569. D. P. 3 Feb. 1791. diss. Thurlow, Ch. Eyre, C. J. and Heath, J.

Thomson, B.2 Camp. N. P. C. 307. n.

e Anon, per Ellenborough, C. J. 2 Camp. N. P. C. 308.

f Mogadara v. Holt, 1 Show. 317.

(61) Where the indorsement by the payee is in blank, and there is a mesne indorsement between that indorsement and the indorsement to the holder, the holder may strike out the mesne indorsement, and the indorsement to himself, and state himself in the declaration as indorsee of the payee, and this rule holds although the mesne indorsement be a special indorsement, Smith v. Clarke, Peake's N. P. C. 225. and 1 Esp. N. P. C. 180. So if a bill be drawn payable to A. who indorses it to B., by whom it is indorsed to C., who afterwards indorses it to the holder; the holder may state in his declaration that the bill was indorsed by A. to C., who indorsed it to the holder, leaving out the intermediate indorsement, to B. Chaters v. Bell, 4 Esp. N. P. C. 210.

within it, yet if by the law of merchants he has right, the setting forth the custom shall be rejected as surplusage.

A bill of exchange "payable to A. or order, value received," may be alleged to be a bill for value received by the drawer..

In an action by the payee of a bill of exchange against the acceptor, on a bill payable to the plaintiff or order, the declaration omitted to allege a delivery to the payee; it was holden on special demurrer, that the omission was immaterial, and that the allegation that the drawer made the bill was sufficient", for that included the delivery of the bill to the payee.

In a late case1, where an action was brought against the acceptor of a bill payable to the plaintiff's own order, and the declaration alleged a delivery of the bill to the defendant, which he afterwards accepted. On special demurrer, because it was not alleged that the defendant ever re-delivered the bill to the plaintiff, the court were of opinion that there was not any ground for the objection; for the acceptance of the bill vested a right in the drawer to sue upon it; and if, after acceptance, the acceptor improperly detained the bill in his hands, the drawer might nevertheless sue him on it, and give him notice to produce the bill, or on his default give parol evidence of it.

In an action brought on a bill payable to the plaintiff's own order, it is not necessary for the plaintiff to allege in the declaration, that he has not made any order for the payment of the bill, nor that he has made any order for the payment of it to himself; for a bill payable to a person's own order is payable to himself, if he does not order it to be paid to any other; and such order not appearing, it will be presumed that none was made.

In an action by the indorsee against the drawer for nonpayment of a bill, it is not necessary to state in the declaration, that the bill was accepted; if stated, however, it must be proved, but such proof will be supplied by evidence of a promise to pay the plaintiff after the bill became due; because such promise is an admission of the acceptance*.

If a bill of exchange is accepted, payable at a particular place, in an action against the acceptor, this addition to the acceptance does not require to be noticed in the declaration, in B. R'., being no part of the contract, but merely a memo

g Grant v. Da Costa, 3 M. & S. 351. h Churchill v. Gardner, 7 T. R. 596. iSmith v. M'Clure, 5 East's R. 476. k Jones v. Morgan, 2 Camp. N. P. C.

1 The Court of C. B. have, however, decided it to be necessary. Gammon v. Schmoll, H. 54 Geo. 3. 5 Taunt.

344.