that mentioned, but in such a manner that no person in the ordinary course of business could observe it, and the banker paid to the holder this larger sum; it was holden (r), that the banker could not charge the customer for any thing beyond the sum for which the check was originally drawn. But where a customer of a banker delivered to his wife certain printed checks signed by himself, but with blanks for the sums, requesting his wife to fill the blanks up according to the exigency of his business, she caused one to be filled up with the words, fifty pounds, two shillings, the fifty being commenced with a small letter and placed in the middle of the linethe figures, 501. 2s. were also placed at a considerable distance from the printed . In this state the wife delivered the check to her husband's clerk to receive the amount; instead of which he inserted at the beginning of the line in which the word fifty was written, the words three hundred and, and the figure 3 between the £ and the 50%. The bankers having paid the 3501. 2s.; it was holden (s), that the loss must fall on the customer; for it was the fault of the customer, who ought to have selected for the care of such a check a person conversant with business as well as trustworthy, who would have guarded against fraud in his mode of filling up the check.

Where in the body of a bill it appeared to have been drawn for two hundred pounds, but in the margin, the figures expressed the sum of £245; it was holden (t), that, as this was a case of ambiguitas patens, evidence to show that the words "and forty-five" had been omitted by mistake was not admissible.

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

Hall v. Fuller, 5 B. & C. 750. (s) Young v. Grote, 4 Bingh. 253. (t) Saunderson v. Piper, 5 Bingh. N. C.

425.

(u) Ex parte Smith, Co. B. L. 5th edit.

p. 168, 169; 3 Bro. Ch. C. 1, S. C.
(v) English v. Darley, 2 Bos. & Pul.
61. See the opinion of Eldon, C. J.
(x) Bacon v. Searles, 1 H. Bl. 88.

from the indorser, the holder may recover the whole amount of the bill from the drawer (w). Where the holder, after receiving part payment from the acceptor (x), 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 nonpayment, and notice, or what is equivalent to notice, thereof to the drawer, will not discharge the drawer (y). 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 (z).

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 holden (a), 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. 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 (14), the collateral sureties are discharged both

(w) Johnson v. Kennion, 2 Wils. 262; Walwyn v. St. Quintin, 1 Bos. & Pul. 652.

(x) Gould v. Robson, 8 East, 576.
(y) 2nd Resolution in Walwyn v. St.

Quintin, 1 Bos. & Pul. 652, fully stated, ante, p. 358.

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

(a) Pring v. Clarkson, 1 B. & C. 14.

(14) Without any reserve of the remedy against the sureties; per Lord Eldon, Ch., Exp. Gifford, 6 Vesey, 807; Boultbee v. Stubbs, 18 Ves. 21. See also Orme v. Young, Holt's N. P. C. 84, recognized in Combe v. Woolf,

in law and equity (b), because the creditor cannot call on the other parties without an injury to the person to whom he has given time. If 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 (c).

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, held upon the 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 holden (d), that the acceptor was liable. One of the makers of a joint promissory note may show (e) 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.

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 holden, that this was not a recognition of the terms granted by the holder

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

(c) Fentum v. Pocock, 5 Taunt. 192, overruling Laxton v. Peat, 2 Campb. 185. See also Raggett v. Axmore, 4 Taunt.

730; Price v. Edmunds, 10 B. & C. 578, and Yallop v. Ebers, 1 B. & Ad. 703. Fentum v. Pocock was recognized in Nichols v. Norris, 3 B. & Ad. 41, n.

(d) Harrison v. Courtauld, 3 B. &

Ad. 36.

(e) Hall v. Wilcox, 1 M. & Rob. 58.

8 Bingh. 156, and Dunn v. Slee, Holt's N. P. C. 399; in which last case it was holden, that time given to a surety, without the privity of the cosurety, would not discharge the co-surety. But see Nicholson v. Revill, 6 Nev. & M. 192; 4 A. & E. 675, questioning Exp. Gifford. See also on this subject, Oakeley v. Pasheller, D. P. 10 Bligh, N. R. 548.

to the acceptor, and that the indorser was discharged (ƒ). 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 (g) 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 (h) (15). 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 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 payee and indorser (i). The holder sued the

(f) Withall v. Masterman & Co. 2 Campb. 179.

(g) Hayling v. Mullhall, 2 Bl. R.

1235.

(h) Ellison and others v. Dezell, Bristol, Sum. Ass. 1811, MS.

(i) Mallet v. Thompson, 5 Esp. N. P. C. 178.

(15) "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; 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. 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 Bingh. 508.

acceptor, and charged him in execution (j); 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 Lords' 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, p. 366; Pleading under the new Rules, p. 370; Evidence, p. 371; Recovery of Interest, p. 376.

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. Formerly the declaration extended to a great length; but under the new rules T. T. 1 Will. IV. (k), 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 (1), the suing out the writ being now the commencement of the suit. If in an action of assumpsit against the drawer of a bill, the declaration does not allege a promise to pay, it will be bad on special demurrer (m). 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, have been greatly obviated by the stat. 9 Geo. IV. c. 15, post, under tit. "Covenant, non est factum." Where the acceptance was written before the bill was drawn, the declaration described the transaction in the usual order of time, viz. the drawing first, and then the acceptance; this was holden (n) not to be a variance. And so with respect to an indorsement, whether made before (0) bill drawn, or after (p) bill became due.

By stat. 1 & 2 Geo. IV. c. 78, s. 1, if any person shall accept a

(j) Macdonald v. Bovington, 4 T. R. 825, cited in English v. Darley, 2 Bos. & Pul. 61.

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

(1) Per Parke, B., in Abbott v. Aslett,

1 M. & W. 209.

(m) Henry v. Burbidge, 3 Bingh. N. C. 501; 4 Sc. 296.

(n) Molloy v. Delves, 7 Bingh. 428; 5 M. & P. 275.

(0) Russel v. Langstaffe, Doug. 514. (p) Young v. Wright, 1 Campb. 139.