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either of such additions shall have the force of a direction to the bankers upon whom such draft is made, that the same is to be paid only to or through some banker, and the same shall be payable only to or through some banker."

This statute leaves the law, in practical effect, very much what it was before the statute passed. It was then strong evidence of negligence on the part of a banker to pay a crossed check otherwise than through a banker, so as to make him responsible to his customer (b); such a payment is now made absolutely invalid. In a case in which a crossed check which had been lost had this direction afterwards erased, and the bankers paid it therefore to the person who presented it for payment,-the jury having found that neither the customer nor the bankers were guilty of negligence, the Court of Common Pleas held that the loss must fall upon the customer (c).

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 indorser (d). 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 (e). Receipt of part of the money from an acceptor will not discharge the drawer, if timely notice be given that the 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 (f). Notwithstanding the receipt of part from the indorser, the holder may recover the whole amount of the bill from the drawer (g). 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 held, 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 (h). And it has been held, that in such a case the holder cannot sue till the second bill has become due (i).

(b) Bellamy v. Majoribanks, 7 Exch. R. 389; Carlon v. Ireland, 25 L. J., Q. B. 113.

(c) Simmonds v. Taylor, 27 L. J., C. P. 248; and see now 21 & 22 Vict. c. 79, which enacts, that " any banker paying a check which does not at the time when it is presented for payment plainly appear to have been crossed, &c., shall not in any way be responsible or incur any liability, &c."

(d) Ex parte Smith, Co. B. L. 5th edit. pp. 168, 169; 3 Bro. Ch. C. 1, S. C.

(e) English v. Darley, 2 B. & P. 61. See the opinion of Eldon, C. J.

(f) Bacon v. Searles, 1 H. Bl. 88. See Purssord v. Peek, 9 M. & W. 196.

(g) Johnson v. Kennion, 2 Wils. 262; Walwyn v. St. Quinton, 1 B. & P. 652. (h) Gould v. Robson, 8 East, 576. (i) Kendrick v. Lomax, 2 Tyrw. 447.

But a mere forbearance to sue the acceptor after protest for nonpayment, and notice, or what is equivalent to notice, thereof to the drawer, will not discharge the drawer (k). 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 (1).

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 held, 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 (m). 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 he is 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 in this respect 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, 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 (n). The acceptor is considered the principal debtor, even in the case of a bill drawn for the accommodation of the drawer. Where, therefore, the holder of a bill of exchange, accepted for the accommodation of the drawer, took a cognovit from the drawer for payment by instalments, it was held, that he did not thereby discharge the acceptor (0).

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, had upon the

(k) 2nd Resolution in Walwyn v. St. Quintin, 1 B. & P. 652.

(1) Philpot v. Briant, 4 Bingh. 717; 1 M. & P. 754.

(m) Pring v. Clarkson, 1 B. & C. 14. (n) Per Chambre, J., 3 B. & P. 366.

(0) Fentum v. Pocock, 5 Taunt. 192; Nichols v. Norris, 3 B. & Ad. 41, n. See also Woodhouse v. Farebrother, 23 L. J., Q. B. 22. As to the rule in equity, see Hollier v. Eyre, 9 Cl. & F. 45; Strong v Foster, 17 C. B. 201.

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 held, that the acceptor was liable (p). One of the makers of a joint promissory note may show 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 (q).

The doctrine laid down in Exp. 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 Moles v. Devlin, 3 Bos. & 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 held, that this was not a recognition of the terms granted by the holder to the acceptor, and that the indorser was discharged (r). 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 (s) 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 held, that such deed operated as a release to the defendant. "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; Campb. 179.

(p) Harrison v. Courtauld, 3 B. & Ad. 36.

(q) Hall v. Wilcox, 1 M. & Rob. 58.
(r) Withall v. Masterman & Co., 2

(s) Hayling v. Mullhall, 2 Bl. R. 1235; Ellison v. Dezell, Bristol Sum. Ass. 1811, MS.

make no demand upon

but it was answered that the grantee could 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. 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 declines 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 Bing. 508. But where the indorsee of a note made by the defendant for the accommodation of the payee and indorser covenanted not to sue the payee and indorser, it was held, 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 indorser (t). 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 held 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 (u).

But a discharge of a principal debtor will not discharge the surety, if there be an agreement between the principal debtor and the creditor that it shall not have that effect. "The reason," says Patteson, J., in delivering the judgment of the court in North v. Wakefield, "why a release to one debtor releases all jointly liable, is, because unless it was held to do so, the co-debtor, after paying the debt, might sue him who was released for contribution, and so in effect he would not be released: but that reason does not apply where the debtor released agrees to such a qualification of the release as will leave him liable to any rights of the co-debtor" (x). (t) Mallett v. Thompson, 5 Esp. N. P. C. 178.

(u) Macdonald v. Bovington, 4 T. R. 825, cited in English v. Darley, 2 B. &

P. 61.

(x) 13 Q. B. 258; and see Owen v. Horman, 4 H. L. Cas. 997, and Kearsley v. Cole, 16 M. & W. 128.

VIII. Of the Action on a Bill of Exchange:

Pleas, p. 416.
Evidence, p. 418.

Recovery of Interest, p. 422.

A bill of exchange being a simple contract, the form of action which, previously to the Common Law Procedure Act, was usually adopted for the recovery of the sum of money mentioned in the bill in case of non-acceptance or non-payment was a special assumpsit. The action of debt only lay when there was a privity of contract between the parties. But now, by the Common Law Procedure Act, the distinction between forms of action is substantially abolished (y).

Declaration.-The bill of exchange should be described either by setting it out or by stating its legal effect.

Formerly the declaration extended to a great length; but under the pleading rules, T. T. 1 Will. IV. (2), 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; but it must be remembered, that these rules were made before the Uniformity of Process Act, 2 Will. IV. c. 39; and the forms given by them, which were correct in actions by bill, (because then the declaration was the commencement of the suit,) are so no longer (a), the suing out the writ being now the commencement of the suit. The days of grace need not be noticed (b). 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, were greatly obviated by the stat.

(y) By stat. 18 & 19 Vict. c. 67, which was passed with the object of putting a stop to frivolous or vexatious defences to actions on bills of exchange and promissory notes, all actions upon bills of exchange or promissory notes commenced within six months after the same shall have become payable, may be by writ of summons in the form given by the act; and the plaintiff, on filing affidavit of 'personal service, may at once sign final judgment as in the form likewise given. It is enacted, however, by sect. 2, that a judge shall, upon application within the period of twelve days from such service, give leave to appear to such writ, and to defend the action, on the defendant paying into court the sum indorsed on the writ, or upon affidavits, satisfactory to the judge, which disclose a legal or equitable defence, or such facts as would make it incumbent on the holder to prove consideration, or such other facts as the judge may deem sufficient to support the

application, and on such terms as to security or otherwise as to the judge may seem meet. And sect. 3 enacts, that "after judgment the court or a judge may under special circumstances set aside the judgment, and, if necessary, stay or set aside execution, and may give leave to appear to the writ and to defend the action, if it shall appear to be reasonable to the court or judge so to do, and on such terms as to the court or judge may seem just." See Hall v. Coates, 25 L. J., Exch. 3; Robinson v. Cotterell, 25 L. J., Exch. 4; and Reg. Gen. Nov. 26, 1855. As to the power of amendment where proceedings have been wrongly taken under this act, see Leigh v. Baker, 26 L. J., C. P. 220.

(z) 2 B. & Ad. 783; 7 Bingh. 774; 5 M. & P. 813; 1 Cr. & J. 468; 1 Tyw. 520.

(a) Per Parke, B., in Abbott v. Aslett, 1 M. & W. 209.

(b) Padwick v. Turner, 11 Q. B. 124.

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