Relinquishing a suit, involving a doubful point of law, may be a good satisfaction.(¿) [*184] *The acceptance of a negotiable security from the holder alone, may be a satisfaction even of a debt of larger amount.(k) Where a bill or note, on which some person other than the debtor is liable, is expressly given and accepted,(l) in full satisfaction and discharge, the liability of the debtor for the original debt will not revive, on the dishonour of the substituted instrument.(m) But if it be taken generally on account, or in renewal, the original liability of the debtor revives on its dishonour.(n) 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.(o)(1) (i) Longridge v. D'Orville, 5 B. & Ald. 117. See Edwards v. Baugh, 11 M. & W. 641; Llewellyn v. Llewellyn, 15 L. J. 4, Q. B. (k) Sibree v. Tripp, 15 M. & W. 23. (7) Hardman v. Bellhouse, 9 M. & W. 596. (m) Sard v. Rhodes, 1 Mees. & Wels. 153; 1 Tyrw. & Gr. 298; 4 Dowl. 743; 1 Gale, 376, S. C. (n) See post, Stedman v. Gooch, 1 Esp. 3; Kearslake v. Morgan, 5 T. R. 513. (0) David v. Preece, 5 Q. B. Rep. 440. souri, 59. Elwood v. Deifendorf, 5 Barb. S. C. 398. (1) A bill of exchange or promissory note either of a debtor or any other person is not payment of a precedent In some states however, the rule esdebt, unless it be so expressly agreed. tablished is that such a bill or note is Tobey v. Barber, 5 Johns. 68. McGinn prima facie payment, unless the contrary v. Holmes, 2 Watts, 121. Johnson v. appears. Reed v. Upton, 10 Pick. 522. Weed, 9 Johns. 310. Higgins v. Packard, Jones v. Kennedy, 11 Ibid. 125. Wood 2 Hall, 547. Coxe v. Hunkinson, Coxe, v. Bodwell, 12 Ibid. 268. Hutchins v. 85. Bill v. Porter, 9 Conn. 23. Sheehy Olcutt, 4 Vermont, 555. Trotter v. v. Mandeville, 6 Cranch, 253. Chastain Crockett, 2 Porter, 401. v. Johnson, 2 Bailey, 574. Porter v. ander, 2 Metcalf, 157. Talcott, 1 Cowen, 359. Ayres v. Van- 24 Pick. 13. lieu, 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 Mis Huse v. AlexFrench v. Price, 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. McGilleuddy, 2 Dana, 91. Gardner v. Gorham, 1 Dougl. 507. 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.”(p) A bill indorsed in blank to, one of several acceptors, and in his hands when due, cannot be afterwards transferred,(q) so as to confer on the transferee a remedy against any of the acceptors; for the e has been that which is an equivalent to the performance of the con tract. Obtaining judgment on a bill or note is an extinguishment of the original debt, as between the plaintiff and defendant. But it alone, without actual satisfaction, is no extinguishment, as between the plaintiff and other parties, whether prior or subsequent to the defendant.() Nor is it an extinguishment, as between a party prior to the plaintiff, (p) Norris v. Aylett, 2 Camp. 329. (q) Steele v. Harmer, 15 L. J. 217, Exch; 14 M. & W. 831. As to this, see the judgment of the Court of error; 19 L. J. 37, Exch. (r) Bayley, 335; Claxton v. Swift, 2 Show. 441, 494; Lutwyche, 882; Skin. 255, S. C. 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 vender of goods received from the purchaser the note of a third person made payable to himself, and not indorsed or guarantied 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 Ness, 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, Bayard v. Shunk, 1 Watts & Serg. Scruggs v. Gass, 8 Yerger, 175. 280. 92. to whom the plaintiff after the judgment returns the bill, and the defendant.(8) Nor does the issuing of execution against the person or goods *of one party to the bill, extinguish the plaintiff's remedy against other parties. [*185] 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,(t) is no extinguishment of the liability of other parties.(u) Waiving a fieri facias against the goods of a party, does not discharge any other party.(v) 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.(w) Indeed, if the specialty were given and accepted as a collateral security only, even the liability on the bill, of the party giving it, may remain unaffected.(x) Where a bill is renewed, holding the original bill, and taking the substituted one, operates as a suspension of the debt till the substituted bill is at maturity.(y) 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.(z) If the second bill be discharged, by an alteration, an action may be brought on the first.(a) (s) Tarleton v. Allhusen, 2 Ad. & E. 32. (t) See Chapter on Indulgence, post, p. 189. (u) Hayling v. Mulhall, 2 Bla. 1235; English v. Darley, 2 Bos. & Pul. 61; 3 Esp. 49, S. C.; Clark v. Clement, 6 T. R. 525; Mayhew v. Crickett, 2 Swanst. 190. (v) Pole v. Ford, 2 Chitty, Rep. 125. (w) Bayley, 6th ed. 334, Bac. Ab. Extinguishment, D. (x) Bedford v. Deakin, 2 B. & Ald. 210; 2 Stark. 178, S. C. (y) Kendrick v. Lomax, 2 Cromp. & Jer. 405; 2 Tyr. 438, S. C. See Ex parte Barclay, 7 Ves. 597; Bishop v. Rowe, 3 M. & Sel. 362; Dillon v. Rimmer, 1 Bing. 100; 7 Moore, 427, S. C. (2) Lumley v. Musgrave, 4 Bing. N. Ca. 9; 5 Scott, 230, S. C.; Lumley v. Hudson, 4 Bing. N. Ca. 15; 5 Scott, 238, S. C. (a) Sloman v. Cox, 1 C., M. & R. 471; 5 Tyrw. 174, S. C. 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.(b) *A covenant not to sue for a limited time, will not sus[*186] pend the right of action, (c) 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.(d) An express release, relaxatio, is an acquittance under the seal of the releasor. Being a deed, no consideration is essential to its validity.(a) A release by the holder after the maturity of the bill, is a complete discharge as between the releasor and his transferees on the one hand, and the releasee on the other. Its effect on other parties will be considered when we come to the subject of principal and surety. But a premature release, i. e., a release before the bill is due, though good as between the parties, will not discharge the releasee from the claim of an indorsee for value, who took the bill before it was due, without notice of the release.(bb) (b) Ante, p. 42. (e) Thimbleby v. Barron, 3 Mees. & W. 210. (d) Ford v. Beech, 11 Q. B. 842; Webb v. Spicer, 19 L. J., Q. B. 35, on error. (a) As to the discharge of contract before breach, see the preceding Chapter. (bb) Dod v. Edwards, 2 C. & P. 602. And a release, whether before or after the maturity of the bill, is good as between the parties, although the releasor be not at the time. of the release the holder of the bill. (c) But a release of a drawee before acceptance is inoperative.(d) [*188] A release by one of several joint creditors is a release by all. *And a release to one of several joint contractors is in law a release of all.(e) Therefore, a release of one of two joint acceptors or joint indorsers, is a release to both. A release of one of several joint debtors, who are severally, as well as jointly, liable, is equally a release to all, for judgment and execution against one, would have been a discharge to all.(ƒ) But it has been held, that the legal operation of a release as to parties jointly liable, may in some cases be restrained by the terms of the instrument.(g) But it cannot be defeated by a mere parol agreement.() it A covenant not to sue, amounts in law to a release. But though may be pleaded as a release by the party to whom it is given, it does not so far operate as to discharge another person jointly liable.() Nor will a covenant not to sue given by one of two joint creditors, operate as a release. (j) A covenant not to sue for a limited time, though (as we shall here (c) Scott v. Lifford, 1 Camp. 246; 9 East, 347, S. C. If an acceptor plead a release it must appear by his plea that the bill had been accepted before the release was given. Ashton v. Freestun, 2 M. & G. 1; 2 Scott, N. R. 273, S. C. (d) Drage v. Netter, 1 Ld. Ray. 65; Hartley v. Manton, 5 Q. B. Rep. 247; and see Ashton v. Freestun, supra. (e) Co. Litt. 232, a.; Nicholson v. Revill, 4 Ad. & Ell. 675; 6 N. & M. 192; 1 Har. & W. 753, S. C. So a release of one of several joint trespassers is a release of all, Lit. s. 376. (f) Solly v. Forbes, 2 B. & B. 38; Ex parte Gifford, 6 Ves. 808; but see Nicholson v. Revill, 4 Ad. & E. 675; 6 N. & M. 192; 1 Har. & W. 753, S. C. (g) Brooks v. Stuart, 1 Per. & D. 615; 9 Ad. & E. 854, S. C.; Cocks v. Nash, 9 Bing. 341. (h) 2 Rol. Ab. 412; Lacy v. Kynaston, 2 Salk. 575; 2 Saund. 47, t.; Cheetham v. Ward, 1 B. & P. 630; Nicholson v. Revill, ubi supra, n. (e); Brooks v. Stuart, 9 Ad. & E. 854; 1 Per. & D. 615, S. C. (i) Dean v. Newhall, 8 T. R. 168; Hutton v. Eyre, 6 Taunt. 289. (j) Walmesley v. Cooper, 11 Ad. & Ellis, 216; 3 Per. & Dav. 149, S. C. |