IN BANK. 1846. 1 Crawford v. Swearingen. Both the defendant and the plaintiff gave evidence to prove, Dec. Term, that there were other dealings between the said Forse and the said Swearingen, at the time of the execution of said release, besides the said bill of exchange, which appears in the depositions hereto attached, marked A, B and C, filed herewith. the The defendant thereupon prayed the Court to instruct the jury, that the only claim of the plaintiff against defendant, or the acceptor, upon the subject matter of this suit, was upon bill of exchange, and that the release given in evidence, was a discharge of the acceptor from the bill, in the hands of the plaintiff, and that the defendant was thereby discharged; which instruction the Court refused to give, but did instruct the jury, that if they should find that the bill had been indorsed by the plaintiff before the execution, by him, of said release, and, that he had no interest in it at the time, and it was then held by an indorsee for a valuable consideration, that the plaintiff would not be barred by the release, (after he should have, subsequently to said release, been compelled to take up said bill, and have paid money on account of it,) from recovering in this suit for the money so paid, and that the defendant would not be thereby discharged; to which instruction the defendant, by his counsel, excepted, and prayed the Court to seal this, his bill of exceptions, which is accordingly done. By the assignment of errors, it is averred First That the Court erred in refusing to instruct the jury, that the only claim of the said Swearingen against the said Crawford, as acceptor, was upon the bill of exchange, and that the release was a discharge. Second: In instructing, that if the bill had been indorsed, and Swearingen had no interest in it at the time, but that it was held by Wolcott, as bona fide indorsee, the release could not operate to bar the recovery, &c. Crawford v. Swearingen. Roswell Marsh, for Plaintiff in Error. The errors assigned and relied upon, are two, and arise upon a bill of exceptions sealed upon the trial of the cause in the Supreme Court. The first error assigned, is, that the plaintiff in error prayed the Court to instruct the jury "that the only claim of the plaintiff against the defendant, or the acceptor, upon the subject ' matter of this suit, was upon the bill of exchange; and that the release given in evidence was a discharge of the acceptor 'from the bill in the hands of the plaintiff, and that the de'fendant was thereby discharged." Which instruction the Court refused to give. Was the plaintiff in error legally entitled to such instructions? I submit that he was, and that the refusal deprived him of his rights. It is too well settled to be controverted at this day, that if the holder of a bill give time to the acceptor, even for a day, he thereby discharges all the intermediate parties from liability on the bill in his hands, unless it was done with their consent. It is equally well settled, and on much stronger grounds, that a release of the acceptor discharges all such parties. The ground of both is, that the acceptor is the real debtor, and has the funds in his hands. The drawer and indorsers are securities for him, and liable only on his default. Now, if a party to the bill gives further time, or in other words extends the time of payment before the bill falls due, or releases the acceptor, he is not entitled to demand payment at the maturity of the bill, and, as a necessary sequence, could not, with truth, notify the securities that the acceptor had violated his contract, and that they would be looked to for payment. The reason is obvious. There was no such subsisting contract to pay at that day. It had been changed for a contract to pay at the next or some subsequent day, or released. The drawer and indorsers are not securities for the new contract, if any; and the old is gone. Hence their discharge. IN BANK. Dec. Term, 1846. IN BANK Dec. Term 1846. Crawford v. Swearingen. A release of the acceptor, instead of postponing payment for a day or so, merely, extinguishes the debt forever. With what propriety could Swearingen, in the face of the release, demand payment of Forse? He had given up all claim on him, personally, and agreed to look to his estate in the hands of the trustees for payment. When, therefore, he demanded payment of Forse, as stated in his declaration, he set up a false claim. Forse owed him no such debt. His notice to Crawford, the drawer, could only be valid to charge him on the hypothesis that a subsisting and valid debt had been duly demanded. Swearingen could not, with truth, assert that such a demand had been made; for Forse owed him nothing on the bill. But it may be answered that Swearingen did not make the demand and give the notices, not being the holder when the bill fell due, and that the then holder had a valid right to make such demand and fix the securities by notices. This, if conceded, cannot help his case. It is, undoubtedly, true that an indorser, when he receives notice of demand and protest, may rely upon the holder's diligence to charge those to whom he is entitled to look for payment; or he may give notice himself, in which case he has a day after he gets notice, to do so, and may fix them to him, although the holder had failed to make them responsible to himself. The holder, however, cannot avail himself of a notice given by his indorser. The reason, I apprehend to be, that the indorsce, the holder, has no interest in the bill in the hands of his or any prior indorser; but all prior parties have such an interest in the bill in the hands of the holder as makes his act their act, if they choose to claim it. He is pro hac vice their servant. The principle applies quod facit per alium facit per se. His demand and notice are their demand and notice; and in this case, as in all others, are declared upon as such. But can a party make demand and give notice by a servant or another, when he would have no right to do it himself if the bill were in his own possession? It seems to me that one need only ask the question, to expose, in strong light, the absurdity of an affirmative reply. Crawford v. Swearingen. Dec. Term, 1846. In what character had he an interest in the bill? Long estab- IN BANK. lished principles admit of but one answer to this question: It was as payee. As payee, he declares upon it; and you look into the declaration in vain to find that he ever had an interest in any other character. True it is, that some weak attempts have been made in some cases in England, and perhaps in this country, to make out a new title by a circuitous set of indorsements coming back to a former holder, but they were promptly met and defeated. His declaration, then, is right. He holds his original title, or none. He holds it precisely as if it had never been out of his power or possession, and is just as much bound by any act of his, in the mean time, as if he had never indorsed it. But this point does not rest upon principle only, however clearly it may admit of demonstration. The question has been before the courts, both in England and in this country. Scott v. Lifford, 1 Camp. Rep. 249, was an action by the payee, against the acceptor, on a bill of exchange. The defendant called the drawer as a witness, and he was objected to, on the ground of interest. The drawer executed a general release to the acceptor, when he was still objected to, because, when he had taken up the bill, he would have a new cause of action. But Lord Ellenborough decided, that he would have no other than his old title, which was barred by the release, and admitted the testimony. In Coe v. Hutton, 1 Serg. & Rawle, 398, the case was, Coe & Son, Jan. 20, 1804, gave a promissory note to Hutton, for $800, at ninety days, which Hutton indorsed to Bernard. Bernard sued Hutton on the note, and recòvered the money. On the 13th of April, 1804, the Coes made an assignment of all their estates, for the benefit of their creditors; and Hutton, amongst others, in consideration thereof, executed to them a general release, dated April 14, 1804. The note fell due with the days of grace, April 23, 1804, and must have been in Bernard's hands at the time of the release. The Common Pleas held that the release did not bar him, because the note was not Crawford. Swearingen. 1846. IN BANK. in his hands when the release was executed, and therefore Dec. Term, Coes owed him nothing on the note until he had paid it to Bernard. The declaration was for money paid, and for money had and received. On error in the Supreme Court, Tilghman, C. J., denies that proposition entirely. After stating the position, he says: "Now, the present action cannot be supported, 'but by reason of the note which was given before the release. It cannot be shown that the plaintiffs paid money on account ' of the defendants, without producing that note, and accordingly it was given in evidence on the part of the plaintiff.— • To say that a man, who knows he is liable to pay a sum of money on any account, may not bind himself not to have recourse to one, after he shall have paid the money, is, in my. mind, unreasonable in the highest degree. 'cases go a great way against such a release. Some of the old But of late there has been more liberality of principle. The case of Scott v. Lifford, is in point." Yeates, Justice, holds language equally decisive; and the judgment was reversed. Two reasons have been urged why the release is not a bar, and probably will be again : First: That the bill was not due by lapse of time; and, Second: hands. authority to both points; and Coke lays it down expressly Coe v. Hutton, is a direct Scott v. Lifford, to the last. Coke, 291, b. 3; Th. Coke, 340-that, by a release of all demands, a bond not yet due is released; and, by a release of all covenants, a covenant, to do a specific thing, is released, although not yet broken. Another direct authority on both points, is Cuyler v. Cuyler, 2 Johns. Rep. 186; suit on a promissory note, dated May 13, 1803, at nine months, made by defendant, payable to the plaintiff. The note was indorsed by the plaintiff to one Smith, as security for a debt due him from the defendant; and the plaintiff, as indorser, had paid the note to Smith. The defendant, on the trial, gave in evidence a writing, dated February 10, 1804, six days before the note |