Of the effect of giving time to or ceptor, &c. But if there be any evidence of the assent of the releasing the ac drawer or indorser to the security being taken from the acceptor, or if, after notice of the time having been given, the drawer or indorser promise to pay, he is precluded from taking advantage of the indulgence to the acceptor', Thus where the holder of a bill of exchange, of which payment had been refused, informed the drawer of his intention to take security from the acceptor, and the drawer answered, "you may do as you like, for I am discharged for want of notice;" and it appeared that due notice had been given, it was held that this amounted to an assent on the part of the drawer, and that the holder might still sue him, after taking security from the acceptor. But in a subsequent case', where the holder of a bill of exchange, on its becoming due, allowed the acceptor to renew it without consulting the indorser, but the indorser afterwards said to the acceptor, "it was the best thing that could be done," it was held, that the indorser was nevertheless discharged, because this was not a recognition of the terms granted by the holder to the acceptor, but such approbation 66 Bayl. 153, 4.-Clark v. Devlin, 3 Bos. & P. 363. Atkinson, the acceptor of a bill, having been arrested by the holder, offered him a warrant of attorney for the amount of the bill, payable by instalments. This offer the holder mentioned to the defendant the drawer, proposing to accept of it, who said, you may do as you like, for I have had no notice of the non-payment." In fact he had had notice. The court held, that this amounted to an assent on the part of the defendant to the security being taken; and therefore that the defendant was not discharged by this indulgence to the acceptor. Selwyn, 4th ed. 348. Stevens v. Lynch, 12 East. Rep. 38. The defence in this action, which was by an indorsce against the drawer of a bill, was, that the plaintiff had given time to the acceptor, in answer to which it was proved that the defendant knew of such time having been given; but that conceiving himself to be still liable, three months after the bill became due, he said to the plaintiff, "I know I am liable, and if Jones (the acceptor) does not pay it, I will." Upon this Lord Ellenborough directed a verdict to be found for the plaintiff; and upon a motion for a new trial, the court held the direction right, and refused a rule. 2 Id. ibid. 3 Withall. Masterman, 2 Campb. 179.-Selwyn, 4th ed. 348. must be considered as referring to the acceptor of the bill to whom the arrangement was obviously advantageous, In the instances before stated', where the laches of the holder, in not giving notice of the non-acceptance of a bill, will be excused by the circumstance of the drawer, indorser, &c. not having effects in the hands of the drawee, such parties would also not be discharged by the holder's giving time to or taking security from the acceptor. Therefore the holder for a valuable consideration of a bill accepted for the accommodation of the drawer, may prove the bill under a commission against the drawer, notwithstanding he has taken security from the acceptor and given him time for payment. So if the acceptor of a bill be merely an agent for the drawer, who is the purchaser of goods, the holder's renewing the bill without the consent of the drawer will not discharge him. 1 Ante, 258 to 271. 301 to 309. 2 Walwyn v. St. Quintin, 1 Bos. & P. 652.-2 Esp. Rep. 516, 7. S. C.-Gould v. Robson, 8 East. 576. Ante, 372, 3.-Ex parte Holden, Cooke's Bank. L. 167. Collott v. Haigh, 3 Campb. 281. This was an action on a bill of exchange, drawn by the defendant upon J. Dufton, accepted by him, and indorsed to the plaintiffs. It appeared that when the bill be came due the plaintiffs gave time for some weeks to Dufton, upon his lodging some security in their hands, which did not turn out to be available; but it was likewise proved, that Dufton had accepted the bill merely for the defendant's accommodation, without any consideration whatsoever. Lord Ellenborough ruled, that under these circumstances the defendant was not discharged by the time given to the acceptor. The drawer of an accommodation bill must be considered as the principal debtor, and the acceptor only in the light of a surety. The reason why notice of the dishonor of a bill must in general be given to the drawer, is, that he may recoup himself by withdrawing his effects from the hands of the acceptor, and he is discharged by time given to the acceptor without his consent, because his remedy over against the acceptor may thus be materially affected. But where the bill is accepted merely for the accommodation of the drawer, he has no effects to withdraw, and no remedy to pursue, when compelled to pay. He therefore suffers no injury either by want of notice, or by time being given to the acceptor; and in an action on the bill, he cannot defend himself upon either of these grounds. Verdict for plaintiff. 3 Id. ibid. Ex parte Holden, Cooke's B. L. 167.-1 Mont. 153.Cullen, 100. 4 + Clark and another v. Noel, 3 Campb. 411. Held that the purchaser of goods, to be paid for by bill upon his agent, is not dis of the effect of giring time to or releasing the ac ceptor, &c. Of the effect of giving time to or ceptor, &c. After regular notice of the non-payment of a bill, releasing the ac. the holder may tacitly forbear to sue the acceptor, provided he do not agree to give a precise time, and may receive proposals for a security without prejudicing the claims on the other parties, and it has even been holden, that agreeing (after a bill has become due and been regularly protested for non-payment, and notice thereof given) not to press the acceptor, will not discharge the drawers. And when the holders of a bill of exchange which had been refused payment by the acceptor, gave notice thereof to the drawers, but informed them that they had reason to believe it would be taken up in a few days, and offered to retain the bill till the end of the week unless they received their instructions to the contrary, it was held that such conduct did not discharge the drawer, alcharged by the seller taking a renewal of the bill, without giving him notice, if the agent had not funds in the hands to pay the bill when it became due. Lord Ellenborough was of opinion that Aaron was only in the nature of the surety, and remarked, that as he was not in cash to pay the bill when it became due, it was rather in favour of the defendant to allow it to be renewed. The debt was originally due from the defendant, and the security taken from his agent could be no extinction of it. It was impossible to say the purchaser of goods could be discharged under these circumstances by want of notice like the drawer of a bill of exchange. The plaintiffs had a verdict, which in the ensuing term, upon a motion for a new trial, was approved of by the court. * Second resolution in Walwyn v. St. Quintin, 1 Bos, & Pul, 652.— Selw. N. P. 4th ed. 347.-Wright v. Simpson, 6 Ves. jun. 734. 2 Walwyn St. Quintin, 1 Bos. & Pul. 652. In an action by indorsces against the drawer of a bill, it appeared that after the bill had become due and been protested for non-payment, though no notice thereof had been given to the defendant, he having no effects in the hands of the acceptor. The plaintiffs received part of the money on account from the indorser, and that to an application from the acceptor, stating that it was probable he should be able to pay at a future period, they returned for answer, that they would not press him. It was urged that either of these facts discharged the drawer. But the court after argument and time taken to consider, held that they did not, and awarded the postea to the plaintiffs. Eyre, C.J said, that had this forbearance to sue the acceptor, taken place before noting and protesting for non-payment, so that the bill had not been demanded when it was due, it is clear that the drawer would have been discharged; it would have been giving a new credit to the acceptor. But that after protest for payment, and notice to the drawer, or an equivalent to a notice, a right to sue the drawer had attached, another holder was not bound to sue the acceptor, he might therefore forbear to sue him. See 2 Esp. Rep. 515. S. C.-Manning's Index, 72. 3 Walwyn v. St. Quintin, 1 Bos. & Pul. 652. supra.-Bay!. 154. giving time to or though no further notice of non-payment was given1; Of the effect of and even an express agreement not to sue, made after releasing the acgiving notice of non-payment, but without sufficient ceptor consideration, and without taking any new security, being nudum pactum, will not discharge the other parties2. And though we have just seen, that taking a cognovit payable at a distant time, might discharge the drawer and indorsers'; it would be otherwise if a cognovit or warrant of attorney be taken without giving time *. 'Forster and another v. Jurdison and another, 16 East. 105. The plaintiffs were indorsees of a bill of exchange drawn by the defendants on J. L. and accepted by him. The bill was duly presented for payment and dishonoured, but the acceptor requested the plaintiffs to keep the bill a week and he should be able to pay it. The plaintiffs gave the defendants notice of the dishonour, and of the acceptor's request, and added they would keep the bill till the end of the week, unless they heard from them to the contrary. It was contended for the defendants, that the plaintiffs should have given them notice at the end of the week of the bill not having been paid, and by which laches they were discharged. Wood, B. before whom the cause was tried, was of that opinion, and a verdict was found for the defendants. A rule for a new trial was afterwards obtained, and on cause shewn, the court were of opinion, that the plaintiffs had done every thing which was incumbent upon them, to give themselves a title under the bill, and that by their letter, they at most took upon themselves an agency on the part of the defendants to get payment of the bill, and in that character they continued to hold it for the defendants, and that after the notice received by the defendant the latter were bound to look after the acceptor, and the rule was made absolute. 2 Semble Walwyn v. St. Quintin, 1 Bos. & Pul. 655.-Dean v. Newhall, 8 T. R. 168.-Fitch v. Sutton, 5 East. 230. Arundle Bank v. Goble, K. B. 1817. Action by indorsee against drawer of a bill. 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 the acceptor, that they would give him the time, but that they should expect interest. The cause was tried on the home circuit, before Burrough, J. when it was contended by Nolan and Comyn 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. See also Willison v, Whitaker, 2 Marsh. 383; and Brickwood v. Anniss, 5 Taunt. 614, ante, 374; and Bayl. 154. 'Ante, 375. * Ayrey v. Davenport, 2 New. Rep. 474. Of receiving part payment of the acceptor, &c. Effect of indulgence as to prior parties. It appears to have been holden, that if on presentment for payment, the holder take less than the whole sum due thereon of the acceptor, or indorser, in part satisfaction, without the assent to the other parties to the bill, he thereby discharges them, because, as it was said, it is an election to receive payment from the acceptor'. But it is now settled, that the holder may receive part payment from the acceptor, or indorser, and may sue the other parties for the residue, provided he do not also give time to the acceptor for the payment, of such residue'; and if the holder of a joint and several promissory note, enter up judgment by cognovit against one of the makers and levy part under a fi. fa., this is no discharge of the other 3. It is said, that if the drawee have on presentment for acceptance, engaged to pay only a part, and the holder has given notice of such partial acceptance to the other parties, he should, when the bill becomes due, receive of the drawee the sum for which he accepted, and cause a protest again to be made for nonpayment of the remaining sum♦. Though the giving time to an acceptor, or indorser, will thus in general discharge all subsequent indorsers, who would be entitled to resort to the party indulged, the giving time to a subsequent indorser will not discharge a prior indorsers, and therefore the holder of a bill may * Tassel v. Lewis, 2 Lord Raym. 744.—Kellock v. Robinson, 2 Str. 745.—Sel. Ca. 147. S. C.-Bul. Ni. Pri. 273.—Hull v. Pitfield, 1 Wils. 48. 2 Gould. Robson, 8 East. Rep. 580, ante, 372, 3.-Walwyn v. St. Quintin, 1 Bos. & Pul. 652, ante, 378.-Bul. Ni. Pri. 271. 3. 5.— Mar. 86.-Bayl. 154. 3 Ayrey v. Davenport, 2 New. Rep. 474.-Ex parte Gifford, 6 Ves. jun. 805. + Mar. 68, 85, 86. Claridge v. Dalton, 4 M. & S. 232.-Hayling v. Mullhall, 2 Bla. Rep. 1235.-English v. Darley, 2 Bos. & Pul. 61.-Smith v. Knox, 3 Esp. Rep. 47.-Nadin v. Battie, 5 East. 147. ; and see ex parte Barclay, 7 Ves. jun. 597-Bayl. 151.-Selw. 4th ed. 348. Claridge v. Dalton, 4 M. & S. 232, 3. Per Bayley, J. "If the holder gave time to the payee he cannot call on the indorsers; but this rule does not apply to a party lower down on the bill, as if the fifth indorsee were to give time to the last indorser for six months, |