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A treatise on the law of promissory notes and bills of exchange (Volume 2) online

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where such acceptor had no funds of the drawer in his hands. When this is the case, the
rule seems to be that even demand of the drawer of a bill or check may be dispensed with.
In English v. Darley, 3 Esp. 49, the indorscr and acceptor of a bill had been sued.
Against the latter there had been an execution, and afterwards a compromise, — the
holder having accepted £ 100 in part discharge, and taken a bond and warrant of at-
torney for payment of the remainder by instalments. This was held to discharge the
indorser. Dyke v. Mercer, 2 Show. 394 ; Walwyn v. St. Quintin, 1 B. & P. 652. If
security be taken with assent of indorser, the holder is not dejirived of his remedy.
Clark V. Devlin, 3 B. & P. 363. In Gould v. Robson, 8 East, 576, Lord Ellenborougk
said ; "How can a man be said not to be injured if his means of suing be abridged by
riie act of another'? If the plaintiffs, holders of the bill, liad called iminediatcl}' upon
the defendants for payment as soon as the bill was dishonored, they might immediately
have sued the acceptor and the other parties to the bill. I had some doubts at the trial,
but am inclined to think now that time was given. The holder has the dominion of
the bill at the time ; he may make what arrangements he pleases with the acceptor ; hut
he does that at his peril, and if he thereby alter the situation of any other person on
the bill to the prejudice of that person, he cannot afterwards proceed against him. As
to the taking part payment, no person can object to it, because it is in aid of all the
others who are liable upon the bill; but here the holder did something more ; he took
a new bill from the acceptor, and was to keep the original bill till the other was paid.
That is an agreement that in the mean time the original bill should not be enforced ;
such is at least the effect of the agreement, and therefore I think time was given."
See remarks of Chief Justice Best, Philpot v. Briant, 4 Bing. 717, 719, 721. The same
rule of law holds in the case of an agreement for delay with one of joint makers with-
out consent of indorsers. Kennard i;. Knott, 4 Man. & G. 474, reporter's note. It
must be remembered that any agreement for delay without consideration, though not
communicated to the indorser, is no defence to the latter. M'Lemore v. Powell, 12
Wheat. 554 ; Walwyn v. St. Quintin, 1 B. <& P. 652. It appeared that, after the bill
had become due and been protested, the acceptor was told that he should not be pressed.
This was held no discharge of the drawer, by Lord C. J. Eyre. Lord Edaon, in Eng-
lish V. Darley, 2 B. & P. 61, said, as long as the holder remains passive, his remedies
remain. Arundel Bank v. Goble, Chitty on Bills, 413 ; Badnall v. Samuel, 3 Price, 521 ;
Creath w. Sims, 5 How. 192. See Bay v. Tallmadge, 5 Johns. Ch. 305; Lenox v.
Prout, 3 Wheat. 520 ; Rees v. Berrington, 2 Ves. Jr. 540 ; Reynolds v. Ward, 5
Wend. 501 ; Bank of Utica v. Ives, 17 Wend. 501 ; Norris v. Crummey, 2 Rand.
323; Hunter v. Jett, 4 Rand. 104; M'Kenny v. Waller, 1 Leigh, 434; Alcock v.
Hill, 4 id. 622. AH these cases show that there must be a binding agreement to
give delay to the principal debtor. Hill v. Bull, Gilmer, 149 ; Jones v. Bullitt, 2 Littell,
49, 467 ; Hunt v. Bridgham, 2 Pick. 581 ; Crane i;. Newell, id. 612 ; Bellows v. Lov-
ell, 4 id. 153, 5 Pick. 307 ; BouUbee v. Stubbs, 18 Ves. 20 ; Strafford Bank v. Crosby,


etfectual as lie could have by any proceedings. (t^) Then, the
drawer and indorsers may profit by this agreement, but cannot
be hurt. But, unless the agreement to give time be made with
one who is a party to the bill, it will not operate a discharge of
other parties, (a;)



It is a general rule, resulting from a principle very frequently
applied, that anything whatever done by a holder of a bill or
note,(2/) which must necessarily have the effect of destroying,(2)

8 GrcenL 191 ; Frye v. Barker, 4 Pick. 382; Oxford Bank v. Lewis, 8 id. 458 ; Black-
stone Bank v. Hill, 10 Pick. 129; Hunt v. United States, 1 Gallis. 32 ; Claridge v.
Dalton, 4 Maule & S. 232, per Bayley, J. ; Hall v. Cole, 4 A, & E. 577 ; Scaiborongh
V. Harris, 1 Bay, 177 ; Robertson v. Vogle, 1 Dall. 252; James v. Badger, 1 Johns.
Cas. 131 ; Kenworth v. Hopkins, id. 107.

(«;) Kennard v. Knott, 4 Man. & G. 474, 5 Scott, N. R. 247. See Price v. Edmunds,
10 B. & C. 578, 5 Man. &, R. 287. See also Hall v. Cole, 4 A. & E. 577, 6 Nev. & M.
124; Hulme v. Coles, 2 Sim. 12 ; Michael v. Myers, 6 Man. & G. 702. Action by in-
dorsee against an indorser. It was held no defence that in an action against the
drawer the plaintiff had consented to a judge's order, that upon payment of debt and
costs in one month all proceedings should cease, otherwise the plaintiff to be at liberty
to sign final judgment. This too, though the plea stated that judgment could have
been obtained before the end of the month, inasmuch as such order did not amount to
an absolute stay of proceedings.

(x) Lyon v. Holt, 5 M. & \V. 250. The plaintiff was an indorsee of a bill of ex-
change which he alleged had been drawn and indorsed to the defendant, by him to
W., and by W. to the plaintiff. The defence was, that the defendant had indorsed to
H. for the latter's accommodation, and without consideration, and H. had indorsed to
W., from whom the plaintiff had it. After the bill was due and dishonored, the
plaintiff and H. stated an account respecting this and other dishonored bills, on which
H. was liable to the plaintiff, and agreed to take from B. renewed bills in place of them,
and not to press any parties for payment of the original bills, &c. This agreement was
proved at the trial, but it appeared that no indorsement was made by H. to W. This
was held to be material, and as H. was not a party to the bill, no agreement with him
with regard to the bill could discharge the defendant. The plaintiff had a verdict.

{i/) As a release to an acceptor or maker. So a general covenant not to sue has
been held to enure as a release. Com. Dig. Release. A covenant not to sue upon a
simple contract for a limited term is not pleadable in bar to an action of contract
against the principal debtor. Thimbleby v. Barron, 3 M. & W. 210.

(z) Couch V. Waring, 9 Conn. 261. The holder of a promissory note commenced
suit against the maker and recovered judgment, and execution was satisfied, but then
the holder instituted a suit against the indorser for a balance of interest due on the note

Vol. XL— Q 21


delaying,(o) lessening, or in any way embarrassing the rights
or remedies of other parties against parties to them, discharges
all tlie parties thus injuriously alfected (b) from any claim by
the holder himself, or by any who must claim Ijy or through
him.(c) But a parol promise, with or without consideration,
to look to one only of two joint promisors, or a parol dis-
charge of a note, has been held to be no discharge of such

Tlie question, what degree or what kind of indulgence or

and not included in the judgment which was still unsatisfied. But the Supreme Conn
of Connecticut held that the maker was discharf^ed IVom all further liability, because of
the rule nemo debet bis vexari eadem causa, and that there was no remedy against the
indorser. The discharge of any party to a note will be a discharge of all those whose
liability is subsequent to that of the party so discharged. Sargent v. Applcton, 6 Mass.
8.5. In Ex parte Smith, 3 Bro. Ch. 1, Cooke, B. L. 171, 8th ed., it was held that,
where an indorsee becomes bankrupt, and the holder proves the bill under his commis-
sion, and afterwards compounds with the acceptor, whom he discharges, without notice
to the indorser's assignees that the estate of the indorser is thereby discharged, and the
proof of the debt must be expunged. Lynch v. Reynolds, 16 Johns. 41 ; Lewis v.
Jones, 4 B. & C. 506; English v. Darley, 2 B. & P. 61 ; Clark v. Devlin, 3 id. 363.
See also Nisbet v. Smith, 2 Bro. Ch. 579, in noti.s. In English v. Darley, the plaintiff'
sued the drawer, and took in payment of the judgment cash and security for the re-
mainder. The indorser was held discharged thereby. Withall v. Masterraan, 2 Camp.
179 ; Laxton v. Peat, 2 Camp. 185 ; Gould v. Robson, 8 East, 576} Claridge v. Dal-
ton, 4 M. & S. 226 ; Fentum v. Pocock, 5 Taunt. 192.

(a) Supra, p. 239, note v.

(b) See p. 243, note g. Trimble v. Thorne, 16 Johns. 152; Sterling v. Marietta, &c.
Trading Co., 11 S. & R. 179 ; Beardsley v. Warner, 6 Wend. 610; Freeman's Bank
T. Rollins, 13 Maine, 202. The holder may remain passive. It is the business of the
surety to see that the principal pays. If he does not, the surety may pay and take
measures for his indemnity, unless the holder binds himself to give further time.
M'Lemore v. Powell, 12 Wheat. 554 ; Frye v. Barker, 4 Pick. 382 ; Hunt v. Bridgham,
2 id. 585, 2d ed., note 3, and cases cited ; Beebe v West Branch Bank, 7 Watts & S.
37.5; Oxford Bank w. Lewis, 8 Pick. 458; Central Bank v. Willard, 17 id. 150.

(c) Kennard th Knott, 2 Man. & G. 474 ; Michael v. Myers, 6 id. 702. In those
cases it was agreed, to be sure, that the right of action should be suspended ; but there
was also a stipulation to the elFect that, in case of any default, the holder should have
judgment at as early a period as he could have obtained it had hostile proceedings
been continued. See also Isaac v. Daniel, 8 Q. B. 500. It appears that, unless some
such stipulation be inserted in the agreement, the plea disclosing such an agreement
need not aver that the time was postponed within which the plaintiff might have ob-
tained judgment. It lies upon the one who asserts it to reply specially, or, if the form
of the plea admits it, to prove it under a traverse of the forbearance. The decision
in Sizer v. Heacock, 23 Wend. 81, is very much akin to those above. In that case it
is held, that, if the holder accepts judgment against the maker, and gives time on that,
the indorser will not be discharged if the time given would not be greater tbaa would
have elapsed had a suit been commenced and pursued with diligence.

((f) Ruggles V. Patten, 8 Mass. 480.


delay shall have the effect of discharging indorsers, presents in /
some cases considerable difficulty. The indorser's or drawer's ^
contract is a species of suretyship,(e) and there are two ways in
which this state of things may be viewed. In one, as soon as a
due presentment and demand have been made, and due notice
given of dishonor, the indorser's liability is fixed. (/) He is
now a principal debtor himself, and no longer a mere surety ;
and no delay or indulgence to the maker or prior party dis-
charges the indorser, and he has no right to require of the
holder any further efforts or diligence to obtain payment from
the prior party, (g-) The indorser can pay the note when he
pleases, and so making it his own, proceed against a prior party
at his own pleasure. (//) The other view would regard an in-
dorser as a surety only on certain conditions, the first of which
are presentment, demand, and notice ; and when these conditions
are complied with, his liability is fixed, and attaches to him defi-
nitely. But it attaches to him still only as a surety. He was in
the beginning and is now a surety, only responsible for the debt
of another ; and it remains the duty of the holder to protect the
interests of the surety still, by exerting due care and diligence to
get payment if he can from the prior party. This care and dil-
igence, and the rights of the indorser to require suit, and the

(e) Clark v. Devlin, 3 B. & P. 363, 366. In Griffith v. Reed, 21 Wend. 502, a bill
was drawn on one party by another ; a third party subscribed his name under that of
the drawer, adding the word surety. This was held to be an undertaking with the
payee or subsequent holder that the bill should be accepted and paid, but that the
signer incurred no obligation to the drawees.

(/) Beardsley v. Warner, 6 Wend. 610, 613. The moment the note is dishonored,
and notice of that fact duly given to the indorser, the holder's right to sue him is per-
fect, and this right is not impaired so long as he remains passive. Wood v. Jefferson
Co. Bank, 9 Cowen, 194,. 206 ; English v. Darley, 2 B. & P. 61.

(g) In Pain v. Packard, 13 Johns. 174, the doctrine laid down was this : that, if
an obligee or holder of a note were requested by the surety to proceed without delay and
collect the money of the principal, who is then solvent, and he neglects to comply with
the request, and the principal afterwards becomes insolvent, the surety is exonerated.
See Beardsley v. Warner, 6 Wend. 610. It has been expressly decided in New York,
that the principle above stated is not applicable where the indorser is called upon to
t)ay. Trimble v. Thome, 16 Johns. 152. " The indorser, though in the nature of a
surety, is answerable upon an independent contract, and it is his duty to take up the
bill when dishonored." Mere delay to sue the maker of a note does not discharge the
indorser. Powell v. Waters, 17 Johns. 176; Worsham v. Goar, 4 Port. Ala. 441.
Where an indorser neglected to sue a previous indorser for three years, he was held
free from any neglect.

(h) Supra, p. 242, note b.


like, are, in this view of the case, the same we have ah'cady con-
sidered ill relation to sureties generally. (t) And accordingly, if
there be any want of due care and diligence, and the indorscr is
damnified thereby, his loss is, just as far as it goes, a defence
against a claim or suit by the holder.(y)

It will be observed, that this latter view restores the parties to
negotiable paper, after dishonor, demand, and notice, to the com-
mon law of contracts ; while the former considers the relations
created by indorsement as permanent, and as always continuing
under the law merchant and the peculiar rules which attach to
negotiable paper. The American authorities are very much
divided upon this subject ; (k) but on the whole, we think the
stronger authorities, as well as the better reasons, are in favor of
the former view.(/)

(j) See Chapter on Principal and Surety. In Beardsley v. Warner, 6 Wend. 610,
613, it was .said, " the indorscr cannot require of the creditor to exhaust his remedies
against the maker before he calls upon him to perform his contract. It is not of the
essence of the contract between the holder and indorser, that he should seek payment
of the maker and not of the indorser only on the contingency of an inability on the
part of the maker to pay. King v. Baldwin, 17 Johns. 39.3 ; Ruggles v. Holden, 3
Wend. 216." In Trimble v. Thome, 16 Johns. 152, it was held, that if the holder of
a promissory note be called on by the indorser, after the note has become due, to
prosecute the maker, of whom the debt might then be collected, but who afterwards
becomes insolvent, and he neglects to do so, this is no defence for the indorscr.
Beebe v. West Branch Bank, 7 Watts & S. 375.

(j) The following American cases are to the same effect. Couch v. Waring, 9
Conn. 261 ; Wood v. Jefferson Co. Bank, 9 Cowen, 194 ; Okie v. Spencer, 2 Whart.
253; Seventh Ward Bank v. Hanrick, 2 Story, 416 ; Newcomb v. Raynor, 21 Wend.
108; Hawkins v. Thompson, 2 McLean, 111 ; Woodman v. Eastman, 10 N. H. 359.

{k) In some States of the Union it appears that the indorser is under the same rules
of law as an ordinary surety, and that due diligence must be used to bind him, as is the
case with the latter. Lee v. Love, 1 Call, 497 ; Bronaugh v. Scott, 5 id. 78 ; Small-
wood V. Woods, 1 Bibb, 542 ; Perrin v. Broadwell, 3 Dana, 596 ; Horton v. Frink, 5
Day, 530; Huntington i'. Harvey, 4 Conn. 124 ; Treadway v. Drybread, 4 Blackf. 20;
Bishop V. Yeazle, 6 id. 127 ; Pillard v. Darts, 6 358; Kilpatrick v. Heaton, 3
Brev. 92 ; Kicketson v. Wood, 10 Misso. 547 ; Bcstor v. Walker, 4 Gilman, 3 ; Hopper
V. Sisk, 1 Smith, Ind. 102. Merriman v. Maple, 2 Blackf 350. This was a case in which
the assignee of a note delayed to sue the maker for thirty days after it became due.
The indorser was held excused unless the holder could show an earlier proceeding use-
less or impossible. But where an assignee did not collect the note because he did not
resort to an extraordinary process of law, this was held no laches. Oldham v. Bengan,
2 Littell, 132. See also Perrin v. Broadwell, 3 Dana, 596 ; Henshaw v. Coe, Kirby,
50 ; Alday v. Jamison, 3 Port. Ala. 1 1 2.

(/) That mere indulgence or delay will not have the effect of discharging the in-
dorser of negotiable paper — that there is no obligation to use that diligence which the
surety has a right to demand of the principal, at least when the surety calls upon the


Tlie giving of time to a maker or acceptor (m) before maturity,
so as to prevent a demand when due, or any neglect to make a
demand, will, of course, discharge other parties. Tliere is no
rule relating to negotiable paper more nearly universal than this,
and we have collected in our note some of the almost innumerar
ble cases on this subject which miglit deserve the name of
leading cases. (w) But an arrangement, the intention of which

principal to use it — appears in the following oases. Bank of South Carolina v. Myers,
I Bailey, 412 ; Powell v. Waters, 17 Johns 176 ; Worsham v. Goar, 4 Port. Ala. 441 ;
Stafford V. Yates, 18 Johns. 327; Sterling v. Marietta Co, 11 S. & K. 179 ; State
Bank i'. Wilson, I Dev. 484. Freeman's Bank v. Rollins, 13 Maine, 202. In this
case it was held that the holder must so bind himself to give time on the note that an
action on said instrument cannot be maintained. In this case there was a request by
the indorser to the holder to commence a suit against the maker. The holder also
released property attached on a writ by failing to enter tlie action, and the property
was afterwards conveyed. Bank of U. S. v. Hatch, 6 Pet. 250 ; Lenox v. Prout, 3
Wheat. 520; Fulton v. Matthews, 15 Johns 433; Bank of Utica v. Ives, 17 Wend.
501. In this case the holder received securities, but did not make any binding agree-
ment not to sue. Orme v. Young, Holt, N. P. 84 ; Hunt v. Bridgham, 2 Pick. 581 ;
Frye v. Barker, 4 id. 382 ; Crane v. Newell, 2 id. 612 ; Oxford Bank v. Lewis, 8 id 458.

(m) It is settled law in the courts of equity, that giving time to a principal without
the concurrence of a surety discharges the latter. Bank of Ireland v. Beresford, 6
Dow, 33 ; Archer v. Hale, 4 Bing. 464, 1 Moore & P. 285. Where the obligee of a
bond with a surety, without communication with the surety takes notes from the prin-
cipal and gives further time, tiie surety will be discharged. Rees v. Bcrrington, 2 Ves.
Jr. 540; English v. Darley, 2 B. & P. 61 ; Tidd, 9th ed., 1260. See 2 Am. Lead.
Cas., Hare & Wallace's ed. 98 ; Hunt v. Bridgham, 2 Pick. 581, 585, notes, and cases
cited; King v. Baldwin, 2 Johns. Ch. 554; Miller v. McCan, 7 Paige, 451 ; Gifford r.
Allen, 3 Met. 255 ; Rathbone v. Warren, 10 Johns. 587 ; Solomon v. Gregory, 4 Har-
rison, 112 ; Crosby v. Wyatt, 10 N. H. 318; New Hampshire Savings Bank i\ Ela, 11
id. 335 ; Bank of Steubenville v. Hoge, 6 Ohio, 17 ; Comegys ?j. Booth, 3 Stew. 14;
Clippinger v. Creps, 2 Watts, 45 ; Wayne v. Kirby, 2 Bailey, 521 ; Harnsberger v.
Geiger, 3 Grat. 144 ; Shirtliffe v Gilbert, I Bay, 466 ; Sharpe v. Bingley, 3 Const. R.
373; Moodie v. Morrall, id. 367 ; Kiddell v. Ford, id. 678. If the holder of a note
accepts a check from the maker payable six days after the note falls due, in full
payment of the note when the check is paid, the indorser is thereby discharged. Okie
V. Spencer, 1 Miles, 299, 2 Whart. 253. And the Pennsylvania rule is, that, if the
holder accepts part of the money from the drawer, and gives time to the rest, the
indorser is discharged. Robertson v. Vogle, 1 Dall. 252.

(n) Moss V. Hall, 5 Exch. 46. The plea disclosed consideration. The drawee was
held discharged. Suydam v. Vance, 2 McLean, 99. The defendant was an indorser
of a promissory note, and seems to have been considered as a surety. In Lee v. Levy,
I B. & C. 390, 6 Dowl. & R. 475, the indorsee having brought actions against indorser
and acceptor, took of the latter a cognovit for payment of the debt by instalments.
The verdict was for the defendants. In Isaac v. Daniel, 8 Q. B. 500, the holder gave
time for a valuable consideration ; held a defence. Gould v. Robson, 8 East, 576 ;
Fiddy v. Campbell, 2 Brev. 21. In Kilpatrick v. Heaton, 3 id. 92, it appeared that
the holder had received part payment of the maker, and waited a year ; it was held
21 *


is to give time,(o) has no such elTect if there be no bargain
for dehiy, and this bargain or agreement must be made vahd by
a sutficient consideration, to have the effect ol" discharging tlie
iudorser.(y7) Tlie reason is, that takhig a new note, (q) or new
security, (/•) allects other parties only beneficially. (.9) il" the wliole
right of immediate demand and suit is retained, { /) and there be

that the indorser was discharged. These cases seem to take the ground that exclusive
credit given to the maker will discharge other parties. See contnt, James v. Badger,

1 Johns. Cas. 131 ; Fanners' Bank v. Reynolds, 13 Ohio, 8.5; Hubbly v. Brown, 16
Johns. 70 ; Mayhcw v. Boyd, 5 Md. 102, is a very strong case ; I'aync v. Commercial
Bank, 6 Smcdes & M. 24 ; Okie v. Spencer, 2 Whart. 253 ; McDowell i'. Bank, 1
Harring. Del. 369.

(o) It has been contended and declared, that any credit given by the holder of the
bill to drawer, acceptor, indorser, or promisor, is a consent to hold the demand upon
their responsibility, and that a holder has no remedy afterwards against any other
parties. Shaw v. Grifith, 7 Mass. 494.

ip) Bagley r. Buzzell, 19 Maine, 88. A note was payable on demand, and was
transferred when overdue by an indorsement in these words : " Accountable in eight
months from the above date" (the date of the indorsement). The indorsee gave
the indorser a bond not to sue the maker in eight months. This bond was held to be
given on a collateral agreement to which the maker was no party, and no extension
of time was thereby given, and that the indorser was liable without demand or notice.
Ashley v. Gunton, 15 Ark. 415. "After the indorser h;is been fixed by demand,
protest, and notice, mere forbearance by the holder not based upon any obligatory
contract with the holder for day (delay?), and which does not impair any of the sub-
stantial rights of the indorser, cannot work his discharge," per Scott, J. See Peake r.
Dorwin, 25 Vt. 28. There must be a valid contract, per Isham, J. See Talmage v.
Burlingame, 9 Barr, 21 ; Mathews v. Aikin, 1 Comst. 595; Wilkes v. Harper, 2 Barb.
Ch. 338 ; Sawyer v. Patterson, 11 Ala. 523 ; Draper v. Romeyn, 18 Barb 166.

(q) Robertson v. Vogle, 1 Dall. 252. The holder received a check from the maker,
payable six days after the note, and to be in full when cashed. This was held a dis-
charge of the indorser. Shaw v. Nolan, 8 La. Ann. 25. A new note was taken, pay-
able one day later. Held, indorser discharged. Gould v. Robson, 8 East, 576 ; Wal-
ters V. Swallow, 6 Whart. 446 ; Okie ;». Spencer, 2 id. 253.

(r) Pring v. Clarkson, 1 B. & C. 14, 2 Dow. & R. 78. See also Bedford v. Deakin,

2 B. & Aid. 210, 2 Stark. 178 ; Twopenny v. Young, 3 B. & C. 208 ; Itipley v. Green-
leaf, 2 Vt. 129; Oxford Bank v. Lewis, 8 Pick. 458; Badnall v. Samuel. 3 Price, 521.

(s) In Hightower v. Ivy, 2 Port. Ala. 308, the indorsee had brought a suit against
the maker, and during its pendency refused to receive part payment thereof The maker
was held thereby to have lost so much of his claim against the indorser.

(t) The People v. Jansen, 7 Johns. 332 ; Hunt v. The United States, 1 Gallis 32 ;
Deming v. Norton, Kirby, 397 ; Ludlow v. Simond, 2 Caines, Cas. 1 ; Walsh v. Bailie,
10 Johns. 180 ; Rathbone v. Warren, id. 587 ; Com. of Berks Co. v. Ross, 3 Binn. 520 ;
King );. Baldwin, 2 Johns. Ch. 554 ; Burn v. Poaug, 3 Desaus. Ch. 596 ; Butlers. Ham-
ilton, 2 id. 226 ; Rutledge v. Greenwood, 2 id. 389; Huie v. Bailey, 16 La. 213. In
Hard v. Little, 12 Mass. 502, a bill was protested for non-acceptance, and due notice
given to the other parties. The holder then took collateral security from the drawer,
which he relinquished upon learning that the drawee would probably pay the bill at

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