to take a bill, he discharges his former debtor.(k) If, however, the holder being unable to obtain cash, takes a bill from the drawee as a collateral security, and keeps the original bill, it is conceived that his remedies on the original bill would not be affected and that, as between himself and the drawer, there would be a good consideration for the new bill.(2)

A warrant of attorney is only a collateral security.(m)

Thirdly, as to the means by which the discharge of the principal may be prevented from operating as a discharge to the surety.

It has been repeatedly held, and is now well established, that a discharge by the creditor to the principal debtor will not discharge the surety, if there be an agreement between the creditor and the principal that the surety shall not be thereby discharged.(n) Albeit the surety himself is no party to the stipulation; and the surety's remedy over against the principal is intact whether the surety be or be not a party, (o) unless the instrument amount to a release of one of [*198] several joint or joint and several debtors.(p) But this stipulation must appear on the face of the instrument giving time, and cannot if the indulgence be in writing, be proved by parol.(1)

No indulgence to an acceptor or other prior party will discharge an indorser, if he previously consent to it. Thus, where the acceptor, having been arrested by the holder, offered him a warrant of attorney for the amount of the bill, payable by instalments, and, the holder mentioning the offer to the drawer, the drawer said, "You may do as you like, for I have had no notice of the non-payment;" it was held, that this amounted to an assent, and that the drawer (who, in fact, had had notice,) was not discharged by the indulgence.(r)

(k) Strong v. Hart, 9 D. & R. 189; 6 B. & C. 160; Smith v. Ferrand, 7 B. & C. 19; 9 D. & R. 803; but see Robinson v. Read, 9 B. & C. 449; 4 M. & R. 349, S. C. (7) Vide the Chapter on Consideration, Debt of a Third Person, p. 96.

(m) Norris v. Aylett, 2 Camp. 329.

(n) Burke's case, 6 Ves. 809; Boultbee v. Stubbs, 18 Ves. 20; Ex parte Glendinning, Buck, 517; Ex parte Carstairs, ibid. 560; Harrison v. Courtauld, 3 B. & Ad. 36; Nichols v. Norris, ibid. 41, n.; Cowper v. Smith, 4 M. & W. 519; Smith v. Winter, 4 M. & W. 454.

(0) Kearsley v. Cole, 16 M. & W. 128.

(p) Ibid, It is not unusual to insert in the original contract of suretyship a stipulation, that a composition with the principal shall not release the surety. See Cowper v. Smith, 4 M. & W. 519.

Lastly, as to the mode in which the operation of indulgence to the principal on the liability of the surety may be waived.

Wherever the surety, with knowledge of the facts, assents either by words or acts to what has already been done, such subsequent assent will be a waiver of his discharge without any new consideration.(s) Therefore, where time had been given, and the drawer, aware of the fact, but ignorant of the law, and conceiving himself still liable, said, "I know I am liable, and if the acceptor does not pay it I will," the drawer was held to have waived his discharge, (t) But where a bill was renewed, and an indorsee said, "it was the best thing that could be done," it was held, that this was no recognition of his liability.(u)

If the principal and sureties are jointly liable, e. g. if they are joint makers of a note, then a discharge to a surety by the creditor releasing him, or making him executor, or taking from him a composition and erasing his name from the note will be a discharge of the cosurety, and also of the principal debtor ;(v) *but the discharge, in this case, does not proceed on the law of principal and surety.

[*199]

If one who is surety on a joint and several note, signed by the principal, pay the amount, though without any request or compulsion by the creditor, he may recover it of the principal.(w)

Where the sureties are not, as between themselves, principal and surety, as a prior and subsequent indorser of a bill or note are, but merely co-sureties, as two or more joint, or joint and several, makers of a note, if one be called on to pay the whole debt, the others shall severally contribute in equal proportions.

And though the same debt be secured by different instruments, executed by different sureties, and though one portion of the debt be secured by one instrument, and one by another, and different sureties exccute each, still there is mutual contribution.(x)

A surety has a right of action against his co-surety as soon as he

(s) Mayhew v. Crickett, 2 Swanst. 185; Smith v. Winter, 4 M. & W. 467. (1) Stevens v. Lynch, 12 East, 38; 2 Camp. 332, S. C.; Smith v. Winter, 4 M. & W. 454.

(u) Withall v. Masterman, 2 Camp. 179; Clark v. Devlin, 3 B. & P. 363; Tindal v. Brown, 1 T. R. 167; English v. Darley, 2 B. & P. 61.

(v) Nicholson v. Revill, 4 Ad. & E. 675; 6 N. & M. 192; 1 Har. & W. 753, S. C. (w) Pitt v. Purssord, 8 M. & W. 538.

(x) Deering v. Earl of Winchelsea, 2 Bos. & P. 270; Mayhew v. Crickett, 2 Swanst.

has paid his proportion of the debt ;(y) but he has a fresh right of action against the principal for every sum that he pays.

The proper legal remedy for a surety who has paid more than his due proportion of the debt against his co-surety, is an action for money paid to the use of the co-surety.(z)

The right of a surety to contribution from his co-surety, is not prejudiced by the plaintiff possessing a security against the principal debtor which the defendant does not possess, and of which he was not aware.(a)

If a surety pay money to the creditor under a mistake as to the facts supposed to constitute his liability, he may recover it back.(b)

WHEN a foreign bill is refused acceptance or payment, it was and still is necessary, by the custom of merchants, in order to charge the drawer, that the dishonour should be attested by a protest.(a) For, by the law of most foreign nations, (b) a protest is, or was, essential in case of dishonour of any bill; and, though by the law of England it is unnecessary, in the case of an inland bill, yet, for the sake of

(y) Davies v. Humphreys, 6 M. & W. 153; Cowell v. Edwards, 2 B. & P. 268; Browne v. Lee, 6 B. & C. 689.

(2) Kemp v. Finden, 12 M. & W. 421.

(a) Done v. Whalley, 17 L. J. 225, Exch.; 2 Exch. Rep. 198, S. C.

(b) Mills v. Alderbury Union, 3 Exch. 590.

(a) Gale v. Walsh, 5 T. R. 239; Rogers v. Stephens, 2 T. R. 713; Orr v. Maginnis, 7 East, 359; 3 Smith, 328, S. C.

(b) Poth. 217.

uniformity in international transactions, a foreign bill must be protested. (c)(1) Besides, a protest affords satisfactory evidence of dishonour to the drawer, who, from his residence abroad, might experience a difficulty in making proper inquiries on the subject, and be compelled to rely on the representation of the holder. It also furnishes an indorsee with the best evidence to charge an antecedent party abroad; for foreign Courts give credit to the acts of a public functionary, in the same manner as a protest under the seal of a foreign notary is evidence in our Courts, of the dishonour of a bill payable abroad.(d)

But a protest is not necessary on a foreign promissory note.(e)

The protest should be made by a notary public; but, if there be

(c) See Brough v. Perkins, 1 Salk. 131; 2 Ld. Raym. 993; 6 Mod. 80, S. C.; and t'he argument in Trimby v. Vignier, 1 Bing. N. Ca. 151; 4 M. & Sc. 955; 6 C. & P. 25, S. C., as to a protest of a French bill payable in France.

(d) Anon.; 12 Mod. 345; Rep. temp. Holt, 297. (e) See Bonar v. Mitchell, 19 L. J. Exch. 302.

(1) Demand and protest must be made according to the laws of the place where the bill is made payable. Ellis v. Commercial Bank, 7 Howard, Miss. 294. Carter v. Union Bank, 7 Humph. 548. Grafton Bank v. Moore, 14 N. Hamp. 142. Where the drawee of a bill of exchange residing in New York, wrote a letter there to the drawer, residing in Massachusetts, accepting the bill which was drawn in the latter State, it was held that the contract of acceptance was made in New York and was governed by the law of that State; and the bill must be presented there to the acceptor for payment. Worcester Bank v. Wells, 8 Metcalf, 107.

Protest is necessary in case of a foreign bill in order to charge the drawer or endorser. Payne v. Winn, 2 Bay. 376. Union Bank v. Hyde, 6 Wheaton, 572. Duncan v. Course, 1 Rep. Const. Ct. 100. Read v. The Bank of Kentucky, 1 Monroe, 91. Carter v. Burleigh, 9 N. Hamp. 558. Nelson v. Fotterly, 7 Leigh, 173.

But a protest of an inland bill is unneces sary, unless as in some States it is made necessary by statute to the recovery of damages. Union Bank v. Hyde, 6 Wheaton, 572. Miller v. Hackley, 5 Johns. 375. Payne v. Winn, 2 Bay, 376. Young v. Bryan, 6 Wheaton, 146. Taylor v. Bank of Illinois, 7 Monroe, 579. Bank of United States v. Leathers, 10 B. Monroe, 64. Lawrence v. Ralston, 3 Bibb, 102. Murry v. Clayborn, 2 Ibid. 300. McMarchey v. Robinson, 10 Ohio, Hubbard v. Troy, 2 Iredell, 134. Bailey v. Dozier, 6 Howard, U. S. 23. Smith v. Ralston, 1 Morris, 87. Turner v. Greenwood, 4 English, 44.

496.

It is not necessary to protest a promis sory note. Payne v. Winn, 2 Bay, 374. City Bank v. Cutter, 3 Pick. 414. Young v. Bryan, 6 Wheat. 146. Smith v. Little, 10 N. Hamp. 526. Bay v. Church, 15 Conn. 15. Sussex Bauk v. Baldwin, 2 Harrison, 487. Evans v. Gordon, 8 Porter, 142. Smith v. Gibbs, 2 Smedes & Marshall, 479. Platt v. Drake, 1 Doug. 296.

no such notary in or near the place where the bill is payable [201]

it may be made by an inhabitant, in the presence of two witnesses.(ƒ)(1)

A notary, registrarius, actuarius, serinarius, was anciently a scribe that only took notes or minutes, and made short drafts of writings and other instruments, both public and private. He is at this day a public officer of the civil and canon law, appointed by the Archbishop of Canterbury, who, in the instrument of appointment, decrees, "that full faith be given, as well in as out of judgment, to the instruments by him to be made."(g) This appointment is also registered and subscribed by the clerk of her Majesty for faculties in Chancery. The present act for the regulation of notaries is the 41 Geo. 3, c. 79.(h) By the 11th section of this statue, any person acting for reward as a notary, without being duly admitted, forfeits 50l. to him that will sue for the same.

By the 6 Geo. 4, c. 87, s. 20, her Majesty's consuls at foreign ports or places are empowered to do all notarial acts.

And, by 3 & 4 Wm. 4, c. 70, attorneys residing more than ten miles from the Royal Exchange may be admitted to practise as

notaries.

The protest of a foreign bill should be begun, at least (and such an incipient protest is called noting,) on the day on which acceptance or payment is refused;(i) but it may be drawn up and completed at any time before the commencement of the suit, (k) or even before the trial,() and ante-dated accordingly. An inland bill cannot be protested for non-payment till the day after it is due.(m)(2)

(f) Bayley, 210.

() Ayliffe's Parergon, 385; 3 Burn's Eccl. Law, 1.

(h) And see 6 & 7 Vict. c. 90.

(i) B. N. P. 272.

(k) Chaters v. Bell, 4 Esp. 48; Selw. 9th ed. 360, S. C.; but see Vandewell v. Tyrrell, M. & M. 87, where there is payment for honour.

(1) Bul. N. P. 272; Orr v. Magennis, 7 East, 361; Thompson on Bills, p. 147. (m) 9 & 10 Wm. 3, c. 17.

(1) A demand of payment of a note may be made by a clerk of the notary. Sussex Bank v. Baldwin, 2 Harrison,

487.

The notary who fills up and certifies the protest must present the bill himself; it cannot be done by an agent. Car

michael v. Pennsylvania Bank, 4 Howard, Miss. 567. Sacrider v. Brown, 3 M'Lean, 481. Chenowith v. Chamberlin, 6 B. Monroe, 60. Bank of Kentucky v. Garey, Ibid. 626. Carter v. Union Bank, 7 Humph. 548.

(2) A protest is properly made on the