sign judgment against him, he will not be bound to prosecute that judgment, but he must take care that de does not give the acceptor a defence against the drawer. Clark v. Devlin, 3 B. & P. 365. After protest for non-payment, and notice to the drawer, or what is equivalent to notice, a right to sue the drawer attaches, and the holder is not bound to sue the acceptor, and may therefore forbear to sue him. Per Eyre, C. J. `Walwyn v. St. Quintin, 1 B. & P. 655. Thus, when the holder of a bill, in reply to a letter representing the probability of the acceptor being able to pay at a future period, returned an answer in which he agreed not to press the acceptor, it was held that this letter amounted to a mere forbearance. Id. 652. A discharge by operation of law, as under the insolvent act, will not affect the remedy of the holder against other parties. See English v. Darley, 2 B. & P. 62. Nadin v. Battie, East, 147. The holder of a bill having sued the acceptor to execution, the latter obtained his discharge under the Lords' act. The holder then sued the drawer, who after paying the bill, sued the acceptor and charged him in execution. It was held that this was regular, and that the acceptor having been charged in execution at the suit of the holder, and discharged under the Lords' act, was not a satisfaction as between the drawer and acceptor. Macdonald v. Bovington, 4 T. R. 825.

A varying of the liability of the acceptor, by agreement with the holder, will discharge the drawer. Thus, where in an action against the drawers of a bill, it appeared that they had become bankrupts, and that an agreement had been entered into between the holder, the assignees of the drawers, and the acceptor, by which the acceptor agreed with the assignees and the holder, to pay the amount of the bill, provided he should not be called upon to pay more; Lord Ellenborough was of opinion that this new agreement, by which the condition of the acceptor was varied, amounted to a waiver of the right of action against the drawers. De la Torre v. Barclay, 1 Stark. 7.

In order to render the indulgence or giving time a discharge, the agreement to give time must not be a mere nudum pactum without consideration, but such as may be enforced between the parties to it. In an action by the indorsees against the drawer of a bill, it appeared that the plaintiffs were the holders when the bill became due, and duly presented the same to the acceptor for payment, and wrote a letter to the defendant in due time, informing him of the dishonour, but that from the promise of the acceptor they expected the same would be shortly paid. Afterwards the acceptor applied to them for indulgence for some months. They in reply, wrote to him that they would give him the time, but that they should expect interest. The case was tried on the home circuit, before Burrough J., when it was contended for the defendant,

that this indulgence to the acceptor discharged the drawer; but the jury found a verdict for the plaintiffs. On motion to the court of K. B. for a new trial, the court held that as no fresh security was taken from the acceptor, the agreement of the plaintiffs to wait, without consideration, did not discharge the drawer, because the acceptor might, notwithstanding such agreement, be sued at the next instant, and that the understanding that interest should be paid by the acceptor made no difference. Rule refused. Arundel Bank v. Goble, K. B. 1817. Chitty, 379. 5th Edit. 2 Chitty Rep. 365. S. C. See also, Williams v. Whitaker, 2 Marsh. 383. Brickwood v. Anniss, 5 Taunt. 614. 1 Marsh. 250. S. C. The authority of Arundel Bank v. Goble has been recognised in a very late case. The executrix of the acceptor of a bill, orally promised to pay the holder out of her private income, provided he would forbear to sue, which the plaintiff promised to do. In an action against the drawer it was contended that by this giving of time, the defendant had been discharged, but the Court of Common Pleas held, that as the promise of the executrix could not be en forced, there was no consideration for the holder's promise, and that the defendant was not discharged. Per Best, C. J. "The time for payment must be given by a contract that is binding on the holder of the bill; a contract without consideration is not binding on him; the delay in suing is, under such a contract, gratuitous; notwithstanding such contract, he may proceed against the acceptor when he pleases, or receive the amount of the bill from the drawers or indorsers. As the drawers and indorsers are not prevented from taking up the bill by such delay, their liability is not discharged by it; to hold them discharged under such circumstances would be to absolve them from their engagement without any reason for so doing. In the case of the partners of the Arundel Bank v. Goble, found in a note to Chitty on Bills, and the accuracy of which note is proved by my brother's report to us of what passed at the trial before him, that point is decided." Philpot v. Briant, 4 Bingh.

717.

If the holder of a note releases the payee, he does not thereby discharge the maker. Carstairs v. Rolleston, 5 Taunt. 551. 1 Marsh. 207. S. C. Bayley, 273. Though the note were an accommodation note, Ibid. Mallet v. Thompson, 6 Esp. 78. see post. Unless, perhaps, that fact were known to the releasor when he gave the release, Ibid. Bayley, 273.

It has been held, that giving time to the acceptor after judgment obtained against the drawer, does not discharge the latter. Pole v. Ford, 2 Chitty, 125.

Of drawer how discharged by indulgence-taking substituted bill, or collateral security.] If the holder of a bill, without the consent of the other parties, takes another bill from the ac

Per

ceptor instead of payment, it is a discharge to the other parties, unless it be taken merely as a collateral security. The holders of a bill upon its becoming due, agreed to receive from the acceptor half the amount in cash, and to draw a bill on him for the remainder payable at a short date, which he accepted, and that until the last-mentioned bill was paid, the plaintiffs should keep the original bill in their hands as a security. Lord Ellenborough at the trial, thought this was merely a mode of getting payment without any injurious laches on the part of the plaintiffs, and the plaintiffs had a verdict; but on a motion for a new trial, his Lordship and the rest of the court held, that the defendants (the indorsers) were discharged. Lord Ellenborough, "How can a man be said not to be injured, if his means of suing be abridged by the act of another? If the plaintiffs, holders of the bill, had called immediately upon the defendants for payment, as soon as the bill was dishonoured, they might immediately have sued the acceptor, and the other parties on the bill. I had some doubts at the trial, but am now inclined to think that time was given. The holder has the dominion of the bill at the time; he may make what arrangements he pleases with the acceptor, but he does that at his peril, and if he thereby alter the situation of any other person on the bill, to the prejudice of that person, he cannot afterwards proceed against him. As to the taking part payment, no person can object to it, because it is in aid of all the others who are liable upon the bill; but here the holder did something more; he took a new bill from the acceptor, and was to keep the original bill till the other was paid. This is an agreement that in the meantime the original bill should not be enforced; such is at least the effect of the agreement, and therefore I think time was given." Gouldv. Robson, 8 East, 576. But where the second bill is a mere collateral security, the taking it will not operate as a discharge, as in the following case. A bill having been dishonored, 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 to the 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. Pring v. Clarkson, 1 B. & C. 14. 2 D. & R. 78. S. C. So where B. being indebted to A. procured C. to join with him in giving a joint and several promissory note for the amount, and afterwards having become further indebted, and being pressed by A. for further security, by deed, (reciting the debt, and that for a part, a note had been given by him and C., and that A. having demanded payment of part of the debt, B. had requested

him to accept a further security) assigned to A. all his household goods, &c. as a further security, with a proviso that he should not be deprived of the possession of the property assigned, until after three days' notice; it was held that this did not extinguish or suspend the remedy on the note against C. Twopenny v. Young, 3 B. & C. 208. 5 D. & R. 259. S. C. See Pothier, pl. 189. de la novation.

In the foregoing cases the question was, whether the drawer was discharged by the holder taking a substituted bill or other security from the acceptor; in the following, the point was, whether one of several drawers would be discharged by the holder taking the several notes of one of the other drawers, and renewing them. The defendant's partners, after drawing the bill dissolved partnership, and the holder being told that Bickley, one of the partners, was, by agreement between the partners, to provide for the bill, took three notes of Bickley for the amount reserving strictly the security of the three partners. Two of these notes were dishonored and were taken up by Bickley by means of other bills, which were also dishonored. The third note remained in the holder's hands. In an action on the bill against all the drawers, it was contended for the defendants, that the holder took the notes of Bickley as a satisfaction for the bill, and that at all events they were not liable for the amount, for which the holder had received the substituted bills from Bickley, but the court of K. B. held the holder entitled to recover the whole amount. Per Holroyd, J. "The dishonor of the original bill gave a right of action against all the three partners, and the circumstances of a creditor giving time to one of three joint debtors will not discharge the others, nor even, strictly speaking, suspend his right of action against them. 1 think that the giving of the three notes by Bickley will not operate as a satisfaction of the joint debt; for in the first place, it is not a satisfaction of a higher nature, and in the second place there was an express reservation of the plaintiff's claim against all the three. And the agreement between the three partners cannot vary the holder's right, even though it was communicated to him." Bedford v. Deakin, 2 B. & A. 210. 2 Stark. 178. S. C.

Of drawer-how discharged by compounding with the acceptor, &c.] Although if the acceptor of a bill become bankrupt, proving under his commission and receiving the dividends will be no discharge of the drawer or indorsers; English v. Darley, 2 B. & P. 62. and see post; yet, if he becomes insolvent, and the holder compounds with him for a certain sum and releases him from the rest, it is a discharge to the other parties. Thus, where the agent of the holders of a bill, on the acceptors becoming insolvent, signed a composition deed upon receiving a dividend in full discharge of the estate of the

acceptors (conceiving that the composition, which took place at Hamburgh, was in the nature of a bankruptcy,) it was held that the drawer was thereby discharged. Per Lord Eldon, C. "The law is not disputed. It was held by Lord Thurlow, (Ex parte Smith, 1 Co. B. L. 168. 171.) upon great deliberation, that, if a person, having the security of drawer or acceptor, with effects (a distinction, much to be regretted, having given very mischievous authenticity to accommodation paper) gives the acceptor time, and much more if the drawer [holder], fully discharges the acceptor by composition, the holder can no longer make a demand upon the drawer, whether solvent or not; for this reason, that if the drawer could come upon the acceptor afterwards, the acceptor does not receive any benefit by the composition. The nature of the contract must therefore be, that the holder shall so deal with the bill, that no third person shall come upon the acceptor in consequence of his act. I remember Lord Thurlow said he had con

sulted the judges upon that case. The decision is, therefore, of very high authority. Lord Rosslyn was struck with this consideration, that if the holder did all he could substantially do for the benefit of the persons whose names were upon the bill, that was all that could be expected; and held, that he should, if he really acted for the benefit of the other parties by taking a composition from the acceptor, go on against the drawer. But the misfortune of that is, that the other parties have a right by law, to consider what is for their benefit and are the judges of that, and that has been carried so far, that the actual bankruptcy of the acceptor does not dispense with the necessity of notice to the drawer." Ex parte Wilson, 11 Ves. 410.

The following is the case referred to by Lord Eldon. The indorser of certain bills and notes became bankrupt, and the holder proved the amount under his commission, and afterwards compounded with and discharged the acceptor without the consent or privity of the assignees of the indorser, and the Lord Chancellor held that the indorser's estate was thereby discharged and ordered the proof to be expunged. Ex parte Smith, 3 Br. C. C. 1. So 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. Ellison v. Dezell, Bristol Sum. Ass. M. S. 1 Selw. N. P.348. 4th Ed.

Of drawer how discharged by holder making acceptor his executor.] If a creditor constitutes his debtor his executor, this is a release or discharge of the debt, whether the executor acts or not. 2 Bl. Com. 511, 12. Wankford v. Wankford, 1 Salk.