Maples v. Hicks

1 Brightly 56

Opinion

The jury were charged as follows, by

Huston, J.

— If a new note or bill is given by the same parties, no one being off who was on the old — the securities being of equal effect, the latter may not be an extinguishment of the former, and the holder may sue on either when the last has become due: — but if on the latter note or bill the name of the endorser is left off, and the new bill, payable at a future day, is accepted, without the knowledge, and, especially, if against the consent, of some third person, as endorser, it is giving time to the maker or acceptor, and discharges him whose name is left off, and against whose wish, or without whose knowledge the new security, payable at a future time, was taken; and the fact of interest being put in the last notes, and made principal, makes the case stronger.

The defendant, by giving written notice to sue at once, might possibly have been in a better situation, or he might, if this arrangement had not been made, have taken up the draft and sued immediately. The putting in the interest was a consideration. The new notes then prevented suit against the acceptor. This was done against the will of the drawer, and it is in effect giving time.

Verdict for the defendant.

Footnotes

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Where the holder of a note has, without the consent of the endorser, by-entering into a binding engagement with the maker, to give time, disabled himself from proceeding against him, the endorser is discharged, whether the disability was incurred before or after judgment in a suit upon the note. Manufacturers’ Bank v. Bank of Pennsylvania, 7 W. & S. 335. A judgment against the maker and endorser of a note, does not make them equally principal debtors. Beebee v. West Branch Bank, 7 W. & S. 375. But if the endorser consents to the giving of time, or for a sufficient consideration agrees with the maker to become the principal debtor, he will not be released. Cowden’s Estate, 1 Barr 267.

Where an instrument was executed by the endorser of a promissory note, which had been protested for non-payment, reciting that the drawer was about making an arrangement with the holder for the renewal of the note, “ which is to be reduced from five to ten per cent, every sixty days,” and agreeing that the protested note should be held as collateral security, and stipulating to take no advantage of any delay given ; which agreement was received by the holder, who gave several extensions without always exacting the stipulated reduction. Held, 1. That the agreement was founded on a sufficient consideration. 2. That the holder having accepted some renewals without exacting the reduction, had given time to the drawer, without the corisen[ of the endorser, and could not recover on the original endorsement. Dundas v. Sterling, 4 Barr 73.

A levy on the goods of the drawer, and a release by order of the owner of the judgment, is a discharge of the endorser pro tanto; and the plaintiff cannot object that it is a nullity, because made by the sheriff without seeing the goods. Bank v. Fordyce, 9 Barr 276. And see generally 2 Am. Leading Cases, 339.