revive on the dishonor of the substituted instrument. (p) But if it be taken generally on account or in renewal, the original liability of the debtor revives on its dishonor.(q) If in satisfaction of a note a second note be given, and in satisfaction of the second note, a third, the third note cannot be pleaded as given in satisfaction of the first.(r)1

(p) Sard v. Rhodes, 1 M. & W. 153; 1 Tyrw. & Gr. 298; 4 Dowl. 743; 1 Gale 376, s. c.

(q) See post, Steadman v. Gooch, 1 Esp. 3; Kearslake v. Morgan, 5 T. R. 513.

(r) David v. Preece, 5 Q. B. 440 (48 E. C. L. R.).

A bill of exchange or promissory note, either of a debtor or any other person, is not payment of a precedent debt unless it be so expressly agreed: Tobey v. Barber, 5 Johns. 68; McGinn v. Holmes, 2 Watts 121; Weakly v. Bell, 9 Watts 280; Johnson v. Weed, 9 Johns. 310; Higgins v. Packard, 2 Hall 547; Coxe v. Hunkinson, Coxe 85; Bill v. Porter, 9 Conn. 23; Sheehy v. Mandeville, 6 Cranch 253; Chastain v. Johnson, 2 Bailey 574; Porter v. Talcott, 1 Cowen 359; Ayres v. Vanlieu, 2 Southard 765; Sneed v. Wiester, 2 A. K. Marshall 277; Davidson v. Bridgeport, 8 Conn. 472; Gardner v. Gorham, 1 Dougl. 507; Weed v. Snow, 3 McLean 265; Hays v. Stone, 7 Hill 128; Kelsey v. Rosborough, 2 Richardson 241; Steamboat v. Hammond, 9 Missouri 49; Elwood v. Deifendorf, 5 Barb. S. C. 398. In some states, however, the rule established is that such a bill or note is prima facie payment, unless the contrary appears: Reed v. Upton, 10 Pick. 522; Jones v. Kennedy, 11 Ibid. 125; Wood v. Bodwell, 12 Ibid. 268; Hutchins v. Olcutt, 4 Vermont 555; Trotter v. Crockett, 2 Porter 401; Huse v. Alexander, 2 Metcalf 157; French v. Price, 24 Pick. 13. It is a question of fact, however, for the jury to determine in all cases the quo animo with which the security was given and accepted: Hart v. Boller, 15 Serg. & Rawle 162; Bullen v. McGillcuddy, 2 Dana 91; Gardner v. Gorham, 1 Dougl. 507. A bill of exchange indorsed by the defendant in the suit for the accommodation of the drawer, and subsequently by the plaintiffs for the same purpose, was discounted at the instance of the drawee, and not being paid by him was taken up by the plaintiffs, due notice being given to the defendants as first indorser. Subsequently, in order to reimburse the amount paid by the plaintiffs, a note, drawn by plaintiffs, was indorsed by the defendant, was discounted by a bank and its proceeds remitted to the plaintiffs, and the amount was credited by their clerk on their books to the bill on account of the drawer of it. The note was taken up by the drawer. The act of the clerk was disaffirmed by the plaintiffs on discovering the entry in their books: it was held that the discount of the note to raise money to take up the bill, and the receipt by the plaintiffs of the amount of the note, was not an extinguishment of the liability of the defendant as first indorser of the bill of exchange, the note not being paid by him but taken up by the plaintiffs, there being no evidence of an intention on the part of the plaintiffs to receive the note or its proceeds in satisfac

The taking of a co-extensive security of a higher nature for a bill or note merges the remedy on the inferior instrument. But it must be strictly co-extensive. Therefore, a specialty given by one maker of a joint and several note does not merge the remedy on the note.(8)

[*239] *A warrant of attorney is not an extinguishment of the debt as between the parties. "Till judgment is entered up," says Lord Ellenborough, "the warrant of attorney is merely a collateral security, and cannot merge the original debt.”(t)

A bill indorsed in blank to one of several acceptors, and in his hands when due, cannot be afterwards transferred, (u) so as to con

B. 30 (69 E. C. L. R.).

(s) Ansell v. Baker, 15 Q. Query, as to the effect when the note is joint only. See Bell v. Banks, 3 M. & G. 258, 267; King v. Hoare, 13. M. & W. 494, 496; Sharpe v. Gibbs, Scott, N. R. See ante, chapter on ACCEPTANCE.

(t) Norris v. Aylett, 2 Camp. 329; Bell v. Banks, 3 M. & G. 258 (42 E. C. L. R.).

(u) Steele v. Harmer, 15 L. J., Exch. 217; 14 M. & W. 831, s. c.

As to tion of the bill: Oliphant v. Church, 19 Penna. State Rep. 318. Where a party holding a contingent note receives, in lieu thereof, a note for a smaller sum, payable absolutely, it is a good accord and satisfaction: Winslow v. Hardin, 3 Dana 543. If the vendor of goods received from the purchaser the note of a third person made payable to himself, and not indorsed or guaranteed by the purchaser, such note will be deemed to have been accepted by the vendor in full payment and satisfaction, unless the contrary be expressly proved: Whitbeck v. Van Nees, 11 Johns. 409. If a promissory note be given for goods sold, the seller cannot recover on the original cause of action without producing the note or accounting for its loss: Hays v. McClurg, 4 Watts 452. Giving the creditor a bank check is not payment: Dennie v. Hart, 2 Pick. 204; People v. Howell, 4 Johns. 296; Patton v. Ash, 7 Serg. & Rawle 116; Cromwell v. Lovett, 1 Hall 56; Franklin v. Vanderpoel, Ibid. 78; The People v. Baker, 20 Wendell 602. In general, payment in counterfeit notes or money is not good: Eagle Bank v. Smith, 5 Conn. 71; U. S. Bank v. Bank of Georgia, 10 Wheaton 333; Markle v. Hatfield, 2 Johns. 455; Thomas v. Todd, 6 Hill 340; Anderson v. Hawkins, 3 Hawks. 568; Ramsdale v. Horton, 3 Barr 330. Payment in the bills of an insolvent bank is not a satisfaction of a debt, although at the time and place of payment the bills are in full credit and the parties are wholly ignorant of such insolvency, if the bank was in fact insolvent: Ontario Bank v. Lightbody, 13 Wendell 101; Wainwright v. Webster, 11 Vermont 576; Thomas v. Todd, 6 Hill 340; Watson v. McLaren, 19 Wend. 557. Contra, Lowrey v. Murrell, 2 Porter 280; Bayard v. Shunk, 1 Watts & Serg. 92; Scruggs v. Gass, 8 Yerger 175.

fer on the transferree a remedy against any of the acceptors; for there has been that which is an equivalent to the performance of the contract.

Judgment recovered on a bill or note is an extinguishment of the original debt as between the plaintiff and the defendant. But it alone, without actual satisfaction, is no extinguishment as between the plaintiff and other parties not jointly liable with the original defendant, whether those parties be prior or subsequent to the defendant.(x) Nor is it an extinguishment as between a party prior to the plaintiff, to whom the plaintiff after the judgment returns the bill, and the defendant.(y)

But a judgment recovered against one of several joint makers or joint acceptors, though without satisfaction, is a good plea in bar to an action against the others.(z) But a judgment recovered against one joint and several maker is no plea to an action against his companion.(a)

Nor does the issuing of execution against the person or goods of one party to a bill extinguish the plaintiff's remedy against other parties.

Nay, even the discharging of one party from execution under a ca. sa., though it is a satisfaction as to him and a discharge of those parties to the bill who are his sureties *thereon, (b) is no extinguishment of the liability of other parties. (c)

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this, see the judgment of the Court of Error, 19 L. J., Exch. 37; 4 Exch. 1,

S. C.

(x) Bayley 335; Claxton v. Swift, 2 Show. 441, 494; Lutwyche 882; Skin. 255, s. c.

(y) Tarleton v. Allhusen, 2 Ad. & E. 32 (29 E. C. L. R.).

(z) Ward v. Johnson, 15 Syng's Amer. Rep. 148; King v. Hoare, 13 M. & W. 494; Brinsmead v. Harrison, L. R., 6 C. P. 584; Kendall v. Hamilton, L. R., 3 C. P. D. 403. Ord. XIII. r. 4, excepts judgment by default in certain cases.

(a) Ibid.

(b) See chapter on INDULGENCE, post.

(c) Hayling v. Mulhall, 2 W. Bl. 1235, the marginal note of this case is incorrect, see English v. Darley, 2 Bos. & P. 61; 3 Esp. 49, s. c. Clark v. Clement, 6 T. R. 525; Mayhew v. Crickett, 2 Swanst. 190. See Michael v. Myers, 6 M. & G. 702.

Waiving a fieri facias against the goods of a party does not discharge any other party.(d)

Taking security of a higher nature, as a deed, though it extinguish the simple contract debt on the bill as between the parties to the substitution, has no effect on the liability of the other distinct parties to the bill, (e) supposing that it does not give time so as to prejudice the condition of sureties. Indeed, if the specialty were given and accepted as a collateral security only, even the liability on the bill of the party giving it remains unaffected.(ƒ)

If a bill or note be taken on account of a debt and nothing be said at the time, the legal effect of the transaction is this-that the original debt still remains, but the remedy for it is suspended till maturity of the instrument in the hands of the creditor.(g) This effect of giving the bill has also been described as a conditional payment.(h) It is an exception, but not a solitary one, to the general rule of law that a right of action once suspended by act of the parties is gone forever. (i) The action for the original debt is equally suspended if the bill or note be given by a stranger,(k) or if it be outstanding in the hands of a transferree.1

Where a bill is renewed, holding the original bill and taking the substituted one operates as a suspension of the debt till the substi

(d) Pole v. Ford, 2 Chit. 125.

(e) Bayley, 6th ed. 334; Bac. Ab. Extinguishment, D; Ansell v. Baker, 15 Q. B. 20 (69 E. C. L. R.).

(f) Bedford v. Deakin, 2 B. & Ald. 210; 2 Stark. 178 (3 E. C. L. R.), s. c. (g) Kearslake v. Morgan, 5 T. R. 513; 2 Wms. Saund. 103 b, n. c; Steadman v. Gooch, 1 Esp. 3. If payment of a check be stopped, the debt instantly revives as though it had never been given: Cohen v. Hale, L. R., 3 Q. B. D. 371.

(h) Belshaw v. Bush, 11 C. B. 205 (73 E. C. L. R.).

(i) Belshaw v. Bush, 11 C. B. 201 (73 E. C. L. R.). See ante; Ford v. Beech, Parke, B., delivering the judgment of the Court of Error, 11 Q. B. 867 (63 E. C. L. R.).

(k) Ibid.

1 The consideration of the original note pervades the renewals at whatever remove from the source: Gates v. Union Bank, 12 Heisk. 325; Nightingale v. Chafee, 11 R. I. 1.

[*211]

tuted bill is at maturity.(?) And although *the second bill for the principal sum should be paid, the plaintiff may recover interest due on the original bill at the time when the second was given, by bringing an action on the original bill, unless it appear that the second bill was intended to operate as a renewal or satisfaction of the whole of the former bill.(m) If the second bill be discharged by an alteration, an action may be brought on the first.(n)

If, as we have seen, a debtor on a bill takes out administration to his deceased creditor, that is a suspension of the right of action.(0)

A covenant not to sue for a limited time will not suspend the right of action,(p) but will only create a right to sue for the breach of covenant. No more will a subsequent, or even a contemporaneous, but collateral, agreement on good consideration not to sue for a limited time on a bill or note.(q)

(1) Kendrick v. Lomax, 2 C. & J. 405; 2 Tyrw. 438, s. c. See Ex parte Barclay, 7 Ves. 597; Bishop v. Rowe, 3 M. & Sel. 362; Dillon v. Rimmer, 1 Bing. 100 (8 E. C. L. R.); 7 Moore 427, s. c.; In re London and Birmingham Bank, 34 L. J., Chan. 418.

(m) Lumley v. Musgrave, 4 Bing. N. C. 9 (33 E. C. L. R.); 5 Scott 230, s. c.; Lumley v. Hudson, 4 Bing. N. C. 15 (33 E. C. L. R.); 5 Scott 238, s. c. (n) Sloman v. Cox, 1 C., M. & R. 471; 5 Tyrw. 174, s. c.

(0) Ante, p. 57. See Lowe v. Peskett, 16 C. B. 500 (81 E. C. L. R.). (p) Thimbleby v. Barron, 3 M. & W. 210.

(q) Ford v. Beech, 11 Q. B. 842 (63 E. C. L. R.), in error; Webb v. Spicer, 19 L. J., Q. B. 35; 13 Q. B. 894 (66 E. C. L. R.), s. c., in error; Moss v. Hall, 5 Exch. 50; per Parke, B., Salmon v. Webb, 3 H. L. Cas. 510; Flight v. Gray, 3 C. B., N. S. 320 (91 E. C. L. R.).