Suckley v. Furse , 15 Johns. 338 ( 1818 )

Yates, J.

delivered the opinion of the court. There can be no doubt but that the law discharges the indorser of a bill of exchange, when the holder gives time to the acceptor after it has been dishonoured. (1 Term Rep. 167. 8 East, 576.) but this is not such a case; here the bill having been dishonoured, and notice duly given, Suckley, the holder, draws for the amount of the first bill, with damages and charges, on Furse the drawer, and Angove, the acceptor of that bill, jointly, at 60 days sight, in favour of Thomas Holy, which was accepted by Angove, but not by the defendant Furse. This bill was afterwards returned and never paid, so that without adverting to a partnership between them, on the face of the transaction, it is evident that the intention of the plaintiff was, that the sixty days should be given for payment, provided both accepted ; and then it could not have affected the plaintiff’s remedy against either. From the knowledge both had of the original transaction, it must be presumed that they knew that no greater or other power or authority had been conferred on Holy, the agent; his act, therefore, in taking the acceptance of Angove alone, did not bind the plaintiff, and, consequently, could not discharge the liability of Furse, as drawer of the original bill, on the ground of an agreement for an extension of time of payment, or the giving of a new credit. No such agreement had ever existed between the parties. It was evidently sent to Holy for collection only. To discharge an indorser even, an express agreement must be shown. The case of Gould and others v. Robson, (8 East, 576.) is such a case. There the holder of the bill had taken part payment from the acceptor, and agreed to take a new acceptance from him for the remainder, payable at a future date. The new bill here was drawn without any agreement; and being for an existing debt, could not affect the original liability of Furse ; for it is a settled rule of law, that a bill shall not be a discharge of a precedent debt, unless it be so expressly agreed between the parties. In Clark v. Mendel, (1 Salk. 124.) it is stated, that if part be received, it shall only be a discharge of the old debt for so much. And Lord Kenyon (1 Esp. N. P. Cases, 3. Stedman v. Gooch) says, “ that if in payment of a debt, the creditor is content to take a bill or note, payable at a future day, he cannot legally commence an action on the original debt until such bill or note becomes payable, or default is made ; but if such bill or note is of no value, as if, for example, it be drawn on a person who has no effects of the drawer in hand, and who therefore refuses it, in such case he may consider it as waste paper.”

The plaintiff’s right of action then, against the drawer, was not affected by the second bill. But another objection to the verdict has been made on the argument; that the remitting Of_ther bill to England in time of war was illegal, and that no action against the defendant could grow out of such illegal act.

As to this objection, it might be observed, that it does not appear by the case, that the illegality of remitting the bill was adverted to by the defendant’s counsel at the trial, which might, perhaps, now be deemed sufficient to conclude the party, but if the objection had been made, it would have been of no avail. The act of congress of the 6th of July, 1812, (1 session, 12th Cong. chap. 129.) authorizes vessels of this sort to sail to the enemy’s port, and, of course, those who afford the necessary supplies to the captain, for a voyage thus legalized, are exempted from the controlling principles growing out of a state of war. The same protection afforded by law to Taylor and Newman, who procured the supplies, must be extended to Suckley, and to all those having dealings of the same description. The case of Kensington v. Inglis and another, (8 East, 273.) goes much further, and appears to me to be conclusive on the subject. There a license had been given to trade with an alien enemy for specie and goods, to be brought from the enemy’s country in his ships, into a British colonial port, and it was held, that an insurance on the enemy’s ship, as well as on the goods and specie put on board, was incidentally legalized ; and that it was competent for theBritish agent of both parties, in whose name the insurance was effected, to sue upon the policy in time of war, the trust not contravening any rule of law or of public policy. In this case, the privilege to sail clearly comprehended the right of procuring and affording the necessary supplies, to enable her to prosecute her voyage, for the amount of which the bill in question was drawn. The plaintiff, therefore, on both grounds, is entitled to judgment on the verdict.

Judgment for the plaintiff