davit had been false. But, as the defendant has not sworn the affidavit, he still remains liable, unless he can prove the acceptance a forgery." Stevens v. Thacker, Peake, 187. In an action against the acceptor of a bill, it was proved, that the plaintiffs, the holders, who knew that the acceptance was an accommodation one, and had in their hands property of the drawer, from which they expected to be satisfied, said, at a meeting of the defendant's creditors, " they looked to the drawer, and should not come upon the acceptors of the bill," in consequence of which the defendants assigned the whole of their property to the creditors. Lord Ellenborough directed the jury to consider, whether the language employed by the plaintiffs amounted to an absolute, unconditional, renunciation by them, as holders of the bill, of all claims in respect of it upon the defendants, as acceptors, whereby the latter had entered into an arrangement with their creditors; in that case, the acceptors were discharged from their liability. The holders had made their election, and could now only proceed against the drawer. On the other hand, if the words only imported, that they looked to the drawer in the first instance, that it was not then necessary to come upon the acceptors, and that they should not resort to them if satisfaction could be obtained from another quarter; they did not waive their remedy by this conditional promise, and the acceptor still continued liable, until the bill should be actually paid. The jury found for the plaintiffs. Whatley v. Tricker, 1 Campb. 35. In an action against an acceptor, it was proposed to prove, for the defendant, that the plaintiff, the holder, being discharged under the insolvent act, had delivered in a blank schedule, whereby, as contended, he had acknowledged that the bill was satisfied. But per Lord Ellenborough, "The mere omission to insert the bill in his schedule, is not enough to prove, that the amount was not then due; and we have positive evidence that it was accepted for a full consideration." Hart v. Newman, 3 Campb. 13.

In an action against the acceptor, it was proved for the defendant, that on his attorney applying to the plaintiff, to know what the amount of his claim was, the plaintiff stated, he had judgments against the defendant on warrants of attorney to the amount of 700l.; that as to the bill, he should look to the drawer for it; that the sum of 160l. was due upon it, and that he held the warrant of attorney of an Irish baronet for the amount, and that he wanted no more from the defendant than was included in the warrants of attorney. In consequence of this, the attorney paid all but the bill, which he should not otherwise have done. Per Lord Ellenborough, "If the holder does not expressly renounce all claim upon the security, it still remains valid in point of law. If the party were to forego a bill in equity on that account, it would be a good consideration for a renunciation of part of his claim, but the ground of re

nunciation must be distinctly proved. The plaintiff, probably, might suppose that the drawer would pay the bill, and that he should not have occasion to call upon the defendant. I am of opinion, that, in point of law the circumstances do not amount to an express renunciation, and nothing short of that will be sufficient to discharge the defendant." Parker v. Leigh, 2 Stark. 228. See also Adams v. Gregg, 2 Stark. 533. The defendants were sued as acceptors of two bills. The plaintiffs, the indorsers, were bankers. The bills were accepted for the accommodation of one Leader. The plaintiffs never made any demand on the defendants till after Leader's bankruptcy, three years after one bill became due, and four years after the other. The defendants, two years after the second bill became due, opened a banking account with the plaintiffs, but the plaintiffs did not then inform them that they held these bills against them. The balances which the defendants had in the hands of the plaintiffs, seldom exceeded 300l. (the bills were 500l. each), but, on two occasions, they had, for two or three days, balances to their credit of more than 1000l. on which the plaintiffs made no claim. The plaintiffs debited Leader up to the time of his bankruptcy, with interest on the bills, but never carried the bills themselves to the debit of his account. Per Littledale, J.-"The only question I can leave to the jury is, whether they can collect from the dealings between the parties, evidence that the plaintiffs ever entered into an agreement to discharge the defendants, or expressly renounced all intention of holding them liable. If the jury were satisfied of the existence of either of these facts, their verdict should be for the defendants; if otherwise, for the plaintiffs." Verdict for the plaintiffs. Farquhar v. Southey, 1 Moo. & Mal. 14.

Of acceptor and maker,—how discharged or suspended, by substituted bill, or security, or giving time.] The liability of the acceptor of a bill, or of the maker of a note, may be discharged, or suspended, by the holder's receiving a substituted bill, or other security. Thus, taking a new bill from the acceptor the original bill to be kept as a security, operates as an agreement, that, in the meantime, the original bill shall not be enforced. Per Lord Ellenborough, Gould v. Robson, 8 East, 580, and see Pring v. Clarkson, 1 B. & C. 14. ante, p. 78. Where, on a bill becoming due, and action brought, it was agreed between the holder and the acceptor, that the latter should pay the costs incurred, give a warrant of attorney for the debt, and renew the bill, and accordingly the acceptor gave the warrant of attorney, and accepted another bill for the amount, (which the holder paid away, and which was still outstanding) but did not pay the costs; in an action on the first bill, Lord Ellenborough ruled, first, that as judgment had not been entered up, the warrant of attorney was only a collateral security, and did

not merge the debt; and, secondly, that the facts above stated, furnished no defence, since the costs not having been paid, it was like accord without satisfaction. Norris v. Aylett, 2 Campb. 328. But where, in a similar case, the second bill had been paid when due, but the defendant had neglected to pay the costs of the warrant of attorney, according to the agreement between the parties, it was held, by the court of Common Pleas, that, by the payment of the second bill, the right to sue upon the first was wholly extinguished, and that the plaintiff could only recover the amount of the costs. Dillon v. Rimmer, 7 B. Moore, 427. 1 Bingh. 100. S. C.

Where a person having funds in his hands belonging to the drawer of a bill, accepted for the accommodation of the drawer, took up the bill, to prevent proceedings against the drawer, on condition that he should, if necessary, stand in the situation of the then holder, and he had also declared, that the acceptor should not be troubled; in an action, brought in the name of the holder, against the acceptor, it was held, that the defendant had not been discharged. Adams v. Gregg, 2 Stark. 531.

Where a bill had been accepted by two persons in partnership, and the holder, when it became due, took another bill for the same amount from one of the partners only, Lord Kenyon held, that the holder, by taking the sole bill of the other partner, had discharged his co-partner. Evans v, Drummond, 4 Esp. 91. and see Reed v. White, 5 Esp. 122. But it has been said by Holroyd, J. that the circumstance of a creditor giving time to one of several joint debtors, will not discharge the others. Bedford v. Deakin, 2 B. & A. 217. S. C. 2 Stark. 180. ante, p. 79.

An

Compounding with the principal, discharges the surety who has joined him in a joint and several promissory note. action was brought against the defendant only, on a joint and several promissory note, made by the defendant, and one Stoddart. Plea, non assumpsit. The defendant gave in evidence an agreement in writing, entered into by the plaintiff, with the assignees of Stoddart, then a bankrupt, to receive from them 600%. in lieu of 8831. actually due from the bankrupt on this note, and on other transactions. The defendant obtained a verdict. On motion to set it aside, it was resisted on the part of the defendant, on the ground that the agreement put an end to the plaintiff's recovery on the note, that the principal could not be discharged without discharging the surety also. On the part of the plaintiff, it was urged, that it was not the meaning of the agreement, that the defendant should be discharged. But, per Lord Mansfield, "the plaintiff was party to the agreement, and we cannot receive parol evidence to explain it. Whatever might be the intention of the parties, the principal cannot be released without its operating for the benefit of the surety." Rule discharged. Garrett v. Jule,

B. R. M. 22 G. 3. M. S. Selw. N. P. 369. 4th edit. But, where several persons make a promissory note, as joint sureties, the discharge of one of the sureties by a composition, will not operate as a discharge of the others. Ex parte Gifford, 6 Ves. 805. See Dunn v. Slee, Holt, 403.

Of acceptor-how discharged-giving time to drawer of an accommodation bill.] Whether the holder of a bill, accepted for the accommodation of the drawer, by giving time to th drawer, discharges the acceptor, seems not to be well settled. (See Note 16.) Where, in such a case, the holder received part payment from the drawer, and gave him time to pay the remainder, without the concurrence of the acceptor, Lord Ellenborough said, that this being an accommodation bill within the knowledge of all the parties, the acceptor could only be considered a surety for the drawer, and in the case of simple contracts, the surety is discharged by time being given, without his concurrence, to the principal. Plaintiff nonsuited. Laxton v. Peat, 2 Campb. 185. Abbott, C. J. in the case of Adams v. Gregg, 2 Star. 533, seemed to be of the same opinion, though the circumstance of the case did not call upon him to express it. He there said, "If he, (the holder) had discharged himself from suing Holmes, (the drawer) who was to be considered as the principal, the present action could not have been brought against the surety," (the accommodation acceptor.) So, also, in Collot v. Haigh, 3 Campb. 281, ante, p. 81, Lord Ellenborough treated the drawer as the principal, and the accommodation acceptor as the surety. And see Hill v. Read, Dow. & Ry. N. P. Ĉ. 26.

But the authority of Laxton v. Peat has been frequently doubted. Thus, it was said by Mansfield, C. J. that, except in the above cited case, it never was known that any thing passing between other parties, could discharge an acceptor. Raggett v. Axmore, 4 Taunt. 30. So, it was ruled by Lord Eldon, C. J. that giving time to the drawer of a bill, accepted for the accommodation of the drawer, did not discharge the acceptor. Smith v. Knox, 3 Esp. 46. Where the defence was, time given to the drawer, (the plaintiff knowing it to be an accommodation bill,) but it also appeared, that on the bill becoming due, it had been presented to the acceptor for payment, who promised to pay it, Gibbs, C. J. said, that admitting Laxton v. Peat to be law, of which grave doubts have been entertained, this case might be distinguished. Lord Ellenborough's decision proceeded upon the ground, that the drawer, according to the understanding of the different parties to the bill, was considered as primarily liable, and was, in the first instance, looked to for payment. But here payment is demanded from the acceptor when the bill becomes due, and he then promises to pay it. This shews that he was held liable, as in the common case of the acceptor of a bill of exchange, and he is

not discharged by time given, under these circumstances, to the drawer. Kerrison v. Cooke, 3 Campb. 362. The plaintiff took a bill, without notice that it was accepted for the accommodation of the drawer. When due, it was presented for payment, and refused, and the plaintiff was then informed, that it was an accommodation bill. The plaintiff afterwards received part of the amount from the drawer, and took a cognovit from him for the remainder, payable at a future day. Under the direction of Mansfield, C. J. there was a verdict for the plaintiff, which the court of C. P. refused to set aside. Per Mansfield, C. J.-" It is impossible for us to consider the acceptor of an accommodation bill in the light of a surety for the payment by the drawer; and we cannot, therefore, say that he is discharged by the indulgence shewn to the drawer. One might find here a very important distinction between this case and the case decided by Lord Ellenborough, namely, that here the person taking the bill did not, at the time that he took it, know that it was an accommodation bill; and if he did not then know it, what does it signify what came to his knowledge afterwards, if he took the bill for a valuable consideration? But it is better not to rest this case on that foundation, for, as it appears to me, if the holder had known in the clearest manner, at the time of his taking the bill, that it was merely an accommodation bill, it would make no manner of difference; for he who accepts a bill, whether for value or to serve a friend, makes himself, in all events, liable as acceptor, and nothing can discharge him but payment or release." Fentum v. Pocock, 5 Taunt. 192. 1 Marsh. 14. S. C.

Upon the same principle it has been held that a covenant by the holder not to sue the payee of an accommodation note does not discharge the maker. Per Lord Ellenborough, "It is true that the plaintiff recovering on the defendant in this case, the latter may have his remedy over against the payee, but it will be for money paid to his use at the defendant's suit; the payment creates a new debt, but the old debt is satisfied as between the payee and the plaintiff." Mallett v. Thompson, 5 Esp. 178. see also Carstairs v. Rolleston, 5 Taunt. 551. 1 Marsh. 207. S. C.

Liability of acceptor, whether discharged by neglect to present the bill for payment.] It will be seen from the cases already cited, ante, p. 84, that a mere neglect on the part of the holder to present a bill, accepted generally, for payment, will not discharge the acceptor, but cases have arisen in which it has been made a question, whether the neglect to present a bill accepted, payable at a banker's, will have that effect. A bill was accepted (before the 1 & 2 Geo. 4. c. 78.), payable at a banker's. It became due in February, 1813, but was never presented at the banker's. In May or June, 1814,