drawn had a balance of 700%. in the hands of Messrs Coutts and Co., yet that balance at the time when the bill became due was reduced to 40%. Held' that defendant was not entitled to notice of dishonour. Q. if in such case any notice be necessary, for the acceptor having appointed a special place for payment may be considered as having made Messrs. Coutts and Co. his agents for the purpose of paying the bill, and then their refusal to pay may be considered as a refusal by him. From the circumstance of part payment of a bill without any objection to the want of notice", a jury may be directed to presume that notice was regularly given. Protest. In addition to notice of dishonour, it is necessary for the holder, in the case of a foreign bill, to protest (12) it for non-payment; but where there has been a promise of payment, after bill became due, such promise supersedes the necessity of proving either presentment for payment", notice of dishonour, or protest". But where the drawer of a foreign bill of exchange, at the time of the drawing, was in a foreign country, but returned home before it became due, at which time it was dishonoured and protested, but notice of the dishonour only, and not of the protest, was left at the drawer's house, held that this was sufficient. It appears, from a passage extracted from the case of Tassel v. Lewis, Lord Raym. 743. ante, p. 351, that this protest ought to be made on the last day of grace (13). This strictness, however, is not observed in practice. The modern usage is for the notary to make a minute on the bill, consisting of his initial, the day, month, and year when payment was refused, and charges for making the minute. This minute, which is called noting, is unknown in the law as distinguished from the protest. The notary having made his minute, draws up the protest at his leisure. In Buller's Nisi Prius, p. 272, it is said, "That the use of noting is, that it should be done the very day of refusal, and the protest may be drawn any day after by the notary, and be dated of the day the noting was made." The practice certainly is as here 1 Smith v. Thatcher, 4 B. and A. 200. m Horford v. Wilson, 1 Taunton's R. 12. n Greenway v. Hindley, 4 Campb. 52. (12) See the form of protest used in England. Chitty on Bills, p. 159. (13) With regard to foreign bills of exchange, all the books agree that the protest must be made on the last day of grace. Per Buller, J. in Leftly v. Mills, 4 T. R. 174. stated; but in Chaters v. Bell, 4 Esp. N. P. C. 48, a question was raised, whether the protest ought not to be drawn on the day on which the bill is dishonoured; and it was contended, that the mere noting the bill on that day, and drawing the protest on a subsequent day, was insufficient. Lord Kenyon was of opinion that it was sufficient; and a new trial having been granted, Lord Ellenborough agreed in opinion with Lord Kenyon. A case was then reserved for the opinion of the court, and after argument, the court, conceiving the question to be of great importance, directed it to be turned into a special verdict. But the sum in dispute being very small, and the parties unwilling to incur the expense of a special verdict, the recommendation of the court was not attended to, and the case was not mentioned again. The protest must be stamped. The protest for non-payment on inland bills of exchange is regulated by the statute 9 and 10 W. 3. c. 17.; for at common law a protest was not required on such bills; and the power of protesting given by this statute is attended with very few advantages; so that it is not very frequently exercised. The holder of a check is not bound to give notice of its dishonour to the drawer, for the purpose of charging the person from whom he received it. It is sufficient, if he presents it with due diligence to the bankers on whom it is drawn, and gives due notice of its dishonour to those only against whom he seeks his remedy.-If a banker in London receives a check, by the general post, one day, and presents it for payment the next day, he will be considered as having used due diligence. Where a check, drawn by a customer on his banker, for a sum of money described in the body of the check in words and figures, was afterwards altered by the holder, who substituted a larger sum for 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', 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 a line-the figures, 50%. 2s. were also q Rickford v. Ridge, 2 Campb. 537. r Hall v. Fuller, 5 B. & C. 750. 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', 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. 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'. So if the indorsee receive part payment from the acceptor, 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. Bacon v. Searles, 1 H. Bl. 88. Notwithstanding the receipt of part from the indorser, the holder may recover the whole amount of the bill from the drawer. Johnson v. Kenyon, 2 Wils. 262. Walwyn v. St. Quintin, 1 Bos. and Pul. 652. Where the holder, after receiving part payment from the acceptor", 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 agree ment. But a mere forbearance to sue the acceptor after protest for non-payment, and notice, or what is equivalent to notice, r Young v. Grote, 4 Bingh. 253. s Ex-parte Smith, Co. B. L. 5th edit. p. 168, 169. 3 Bro. Ch. C. 1. S. C. t English v. Darley, 2 Bos. and Pul. 61. See the opinion of Eldon, C. J. u Gould v. Robson, 8 East, 576. thereof to the drawer, will not discharge the drawer. 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. Philpot v. Briant, 4 Bingh. 717. 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 the plaintiff it was holden', 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 is he 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 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 in law and equity, because the creditor cannot call on the other parties without an injury to the person to whom he has given time. If the holder of a bill of exchange accepted for the accom x 2nd. Resolution in Walwyn v. St. Quintin, 1 Bos. and Pul. 652. fully stated, ante, p. 359. y Pring v. Clarkson, 1 B. and C. 14. z Per Chambre, J. 3 Bos. and Pul. 366. (14) Without any reserve of the remedy against the sureties, per Lord Eldon, Ch. ex-parte Gifford, 6 Vesey, 807. See also Orme v. Young, Holt's N. P. C. 84. and Dunn v. Shee, Holt's N. P. C. 399, in which last case it was holden, that time given to a surety, without the privity of the co-surety, would not discharge the co modation 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 nota. The doctrine laid down in ex-parte 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 Males v. Devlin, 3 Bos. and 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 to the acceptor, and that the indorser was discharged. 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 license, without having paid the debt. In a case 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 (15). But where the a Fentum v. Pocock, 5 Taunt. 192, overruling Laxton v. Peat, 2 Campb. 185. See also Raggett v. Axmore, 4 Taunt. 730. b Withall v. Masterman and Co., 2 c Hayling v. Mulhall, 2 Bl. R. 1235. (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 surety for an annuity, the grantee gave time to the prin |