White v. Hopkins

[101] The opinion of the Court was delivered by Kennedy, J. The plaintiffs in error were sued in the court below, upon their acceptance of a bill of exchange, which was done without consideration^merely for the. accommodation of J. E. Foster, the drawer. The bill bears date at Philadelphia, the 23d of March, 1839, and directs the defendants, J. White &. Co., to pay, six months after the date thereof, to the order of Hopkins & Brother, the plaintiffs, the sum of $853.20. The suit was brought to December term, Í839, of .the court below; and the defence set up was, that the bill was accepted by the defendants below,-without consideration, and solely for the accommodation of the drawer; that the plaintiffs.below, with a full knowledge of this fact, on or about the 28th of January 1840, accepted and received from the drawer of the bill, his draft on Reynolds & Mosier for $271 on account of the said bill, and agreed with the drawer to wait six months for the balance or residue of said bill, which six months would not expire until the end of July following. The court below, however, was of opinion, that this matter formed no ba,r to the plaintiffs’ further maintenance of their action, and therefore rendered a judgment in their favour. It is admitted by the counsel for the plaintiffs in error, that the defence set up below does not go to discharge or release them from all liability on their acceptance, but that they are entitled,- under it, to claim the same indulgence, for making payment of thé bill, that was granted by the defendants in error to the drawer, by virtue of their agreement made with him on or about the 28th of January, 1840. It would indeed be vain to claim that they were released thereby; for it would be running counter to the principle settled by this court in the case of The Montgomery Bank v. Walker, (9 S. & R. 229; 12 S. & R. 382). There it was ruled, that the holder of a negotiable note did not discharge the drawer by giving time to the endorser, although the holder knew at the time he obtained the note, by discounting it, that it was drawn exclusively for the accommodation and benefit of the endorser. “ We,” says Chief Justice Tilghman, in delivering the opinion of the court, “ assume this broad principle, that the man who draws a promissory note for the purpose of negotiation, must stand to it. He has placed himself in the situation of principal, and shall not after-wards escape, by alleging that he was but a surety.” 12 S. A R. 383. What is here said of the accommodation drawer of a negotiable note, may be predicated of the accommodation acceptor of a bill of exchange. The acceptor is the principal in the latter case, and must be looked to first for payment, before recourse can be had to the drawer. Heylyn v. Adamson, (2 Burr. 674) ; Doug. 249; Smith v. Knox, (3 Esp. Rep. 47); Clark v. Devlin, (3 Bos. & Pull. 366); Philpott v. Briant, (4 Bing. 720); Pawnal v. Ferrand, (6 B. & C. 442). Therefore if the holder of a bill of exchange, accepted for the accommodation of the drawer, takes a [102] cognovit from the drawer, for payment by instalments, he does not thereby discharge the acceptor; whether he, at the time of taking the bill, knew it was an accommodation bill, or not. See Fentum v. Pocock et al. (5 Taunt. 192). In general, the liability of the acceptor cannot be released or discharged, otherwise than, by agreement, release ox payment. See Chitty on Bills 339, and the authorities there cited. Hence even á formal release of the drawer, by the holder of the bill, will not discharge the acceptor from his liability to the holder, unless such release be founded on payment, or satisfaction, made in some way, by the drawer to the holder. Seeing, then, that the acceptor cannot claim a discharge from the release given by the holder to the drawer, it is difficult if hot wholly impossible to discover upon what principle he can claim to have any indulgence, in regard to the payment of the bill, that may be given by the holder to' the drawer, extended to himself. For the reason why the release shall not enure to the benefit of the acceptor, is, because he has chosen to make himself the principal debtor, the one to whom the holder must first look for payment; and thus to make the drawer merely a surety to the holder, so that the last may therefore deal with the drawer, who is the surety, as he pleases; and it cannot in any way prejudice or injure the rights of the acceptor. Beside, what is the difference in principle, I would ask, between a release for ever from payment of the bill, and a temporary indulgence granted for that purpose, .to the drawer ? The former is an absolute and unlimited dispensation or exemption from payment of the. bill for ever; whereas, the latter is a limited or qualified dispensation from the payment of it. And it would certainly be strange if the acceptor could claim the benefit of the one and not the other. We therefore think the judgment ought to be affirmed. Judgment affirmed.