bill of exchange to another, whether for value, [but see Mendez v. Carreroon, 1 Lord Ray. 742; Gorgerat et al. v. M'Carty, 2 Dall. 144, 1 Yeates, 94; and Welch v. Lindo, 7 Cranch, 159, 163;] or for the purpose of collection shall come to the possession thereof again, he shall be regarded, unless the contrary appear in evidence, as the bona fide holder and proprietor of such bill, and shall be entitled to recover, notwithstanding there may be on it one or more endorsements in full, subsequent to the one to him, without producing any receipt or endorsement back from either of such endorsee, whose names he may strike from the bill, or not, as he may think proper. Dugan et al. v. United States, 3 Wheat. 172, 182-3; Norris v. Badger et al. 6 Cowen, 449.

(1) In debt on prom. note, plaintiff need not aver in declaration, or prove, consideration; tho' defendant may go into evidence touching consideration. Peasley v. Boatwright, 2 Leigh, 195.

An action of debt lies on a promissory note, against executors which should be in the detinet only, unless they have made themselves personally responsible as by a devastavit. Childress v. Emory, 8 Wheat. 642. (2) Under this law an action of debt will lie for the payee against the acceptor of an order, for the action is given, (says president Tucker, in delivering opn. of ct.) upon any note or writing by which the person signing the same, shall promise or oblige himself to pay a sum of money' &c. Now the acceptor of an order does, by his acceptance, oblige himself to pay the amount of the draft to the payee &c. Hollingsworth v. Milton, 8 Leigh, 50. It would seem that the principle recognized in this case, is destructive of the authority of Smith v. Segar, 3 H. & M. 394; and Wilson v. Crowdhill, 2 Munf. 302.

As late as T. T. 1837, the court of C. P. Eng. held, that an action of debt does not lie for the indorsee against the acceptor of a bill of exchange. Cloves v. Williams, 3 Bing. N. C. 868.

(h) Any writing acknowledging a certain sum due, will sustain an action of debt thereon. See Cunningham v. Herndon, 2 Call, 530; Murdock et al. v. Herndon's ex'r, 4 H. & M. 200; Russell v. Whipple, 2

An action of debt may be maintained on a note in writing for the payment of money or tobacco, under this act, and the declaration need not set out the consideration for which it was made, nor aver that it was for value received. Crawford v. Dargh, Gen'l Ct. June T. 1826, 2 Virg. Cas. 521.

In this case the action was brought on 'a note for the payment of 64 dolls. in good state bank paper'-and sustained, but see Beirne et al. v. Dunlap, 8 Leigh, 514, in which it was decided that debt would not lie on a writing obligatory, by which the obligors promised, on or before a specified day, to pay to the obligee 813 dolls. 79 cts. in notes of the United States Bank or either of the Virginia banks. Where the promise is to pay a determinate sum, in an article of fluctuating or uncertain value, if the quantity is not fixed, so that the debtor must pay the full amount of the debt, whether the price of the article be high or low, debt will lie for the demand. But if the quantity be fixed so that at the day of payment it may fall short of the debt, debt will not lie, because the essence of the contract is the delivery of the article, and the debtor can only recover the value in damages. See op. of Tucker, P. and Parker, J.

(3) A foreigh bill of exchange for sterling money, drawn by merchants in Petersburg, Va. (Nelson & Minge,) on a merchant in Liverpool, and dated at Petersburg, expresses on its face that it is drawn for current money there received, but does not express the amount of current money received for it. The bill is endorsed by merchants of Petersburg at Petersburg; and the bill is so drawn and endorsed, for the accommodation of the drawers, with purpose to send it to New York to be there sold, and it is sent to N. York accordingly, and there negotiated; the bill is returned protested. In assumpsit by the N. York holder against the drawers, quære, is this bill to be regarded as a New York bill or a Virginia bill? Judges Brockenbrough and Carr held it to be a N. York bill-judges Cabell and Tucker held it to be a Virginia bill. Nelson v. Fotterall, 7 Leigh, 179. (i) See note (e).

equity affecting the payee alone, the court, having before it all the parties interested, should decree against the payee, in the first place, that he pay the amount to the endorsee, and the costs at law; reserving liberty to the endorsee to apply to the court to dissolve the injunction as to the maker, for so much of the said note as he, (the endorsee) may not be able to recover from the payee, in which case the payee should be decreed to pay to the maker the amount that he may be compelled to pay to the endorsee. M'Neil et al. v. Baird, 6 Munf. 316.

An endorsee of a negotiable note who obtained it from the payee for value received, without notice of any equity between the maker and endorser, shall not be affected by such equity; and if the maker and endorsee are apprised of an equity in favour of the maker, and the maker with such knowledge promise the endorsee that the note shall be paid at maturity, the maker thereby waives his equity in favour of the endorsee. Lomax v. Picot, 2 Rand. 263-71.

The rule (recent) now established is, that in all cases where, from defect of consideration the original payees cannot recover on the note or bill, the endorsee, to maintain an action against the maker or acceptor, must prove consideration given by himself or a prior endorsee, though he may have had no notice that such proof will be called for. Parke, dis.-holding that an endorsement must be taken prima facie, or have been given for value, and that proof, at least of circumstances, tending to throw suspicion on such endorsement, lies on the party disputing its validity, before the endorsee can be called on to prove he gave value for the bill. Heath v. Sansom et al. (C. T. 1831,) 2 Barn. & Adolp. 291.

On a bill filed by the holder of a promis. sory note against all the prior parties, the court to avoid circuity of action, may fix the debt on the party first responsible. Chalmers et al. v. M'Murdo, 5 Munf. 252.

A promissory note negotiable at bank, made and endorsed only for the accommodation of the maker, being left by him with a second endorser to be lodged in bank for discount, was fraudulently put into circulation by said second endorser to raise money for his own use; a third endorser, ignorant of such fraud, may have the note (if lodged in bank for collection, and not paid when due) protested as to the maker and prior endorsers, pay it himself, and then maintain an action thereon against them for its amount, though no valuable consideration passed between him and the second endorser. Robertson et al. v. Williams et al. 5 Munf. 381. Though, in general, indebitatus assumpsit for money lent, or money paid and expended, or money had and received, lies for the holders of a promissory note against an endorser, and the endorsement is prima facie evidence to support those money counts; yet, if it be found by special verdict that the defendant endorsed the note, and the holders

discounted it for accommodation of the maker, and that the defendant received no part of the proceeds of the note so discounted, in such case the holders cannot recover against the defendant on the money counts. Bank of the U. States v. Jackson's adm'x, 9 Leigh, 221.

A party transferring a bill may specially endorse it sans recours, and this will protect him against subsequent endorsers. Dallas, J. in Goupy v. Harden, 7 Taunt. 159; and an endorser of a bill or note taking it under an agreement not to sue the endorser, cannot recover against such endorser, though the endorsement be unqualified. Pike v. Street, 1 Moo. & Malk. 226. Cor. Ld. Tenterden, C. J.

Where bank notes are received in payment, and at the time of such payment the bank which issued the bills or notes has stopped payment, although the failure is not at the time known at the place of payment, the loss falls on the party paying, and not on the party receiving the bills. Lightbody v. Ontario Bank, 11 Wendell, 9; Williams v. Bank of the U. S. 2 Peters, 96; The Bank U. S. v. Corcoran, 2 Peters, 121. See Bull. N. P. 131a, ed. Whatley; and 7 D. & E. 6466; 6 D. & E. 52-3; 1 Marshl. 157. See Canridge v. Allenby, 6 Barn. & Cres. 373; 13 E. C. L. R. 201; Lowrey v. Murrell, 2 Porter, 280, (Alabama.)

If a debtor pays to his creditor a note purporting to be a genuine bank note, and so believed to be both by debtor and creditor, but which is counterfeit, it is no payment, and debtor will still be liable for the amount: provided, however, the note be returned to him within a reasonable time. Pindall's er'rs v. The Northwestern Bank, 7 Leigh, 617. See the elaborate cases of May v. Boisseau, and The Bank of Va. v. Boisseau, 8 Leigh, 164, 213, in which the nature of an ACCOMMODATION ENDORSEMENT is considered, and the mode, &c. of renewing notes at the banks, &c. The endorser of an accommodation note, may withdraw his endorsement at any time before the note is discounted, unless rights for valuable consideration have in the mean time attached in others. As a general rule the locus penitentiæ is never taken away until the contract is completed, and p. 182-3, 193.

In questions of liability, the maker of a note, and the acceptor of a bill, are the debtors, and primarily liable; the other parties are securities. Therefore, if the holder of a note, compound with, or discharge the maker, the other parties are thereby discharged. Lynch v. Reynolds, 16 Johns. R. 41. But if judgment be rendered against maker and endorser, the endorser thereby loses his character of surety: The holder may proceed at his pleasure, and does not discharge the endorser by not issuing or by countermanding an execution against the maker. By the judgment they both become principal debtors. Lenox v. Prout, 3 Wheat. 520; Brown v. Williams, 4 Wend. 360; Bai

ley et al. v. Baldwin, 7 Wend. 289; Badnell et al. v. Samuel, 3 Price E. R. 521. And, if the holder of a bill of exchange, compound with or discharge the acceptor, he cannot afterwards, resort to the other parties to the bill. English v. Darley, 2 Bos. & Pull. 61; Gould et al. v. Kobson et al. 8 East, 576; Hubbly v. Brown, 16 Johns. R. 70. But where the holder recovered judgment against the acceptor and drawer, and sued out a fi. fa. against acceptor and took his goods in execution, which he afterwards abandoned, and gave time to acceptor by receiving another security to pay at a future time; it was held, that the drawer was not thereby discharged; that the rule that giving time or indulgence to an acceptor without the consent of the drawer, discharged the drawer, does not apply after judgment. Pole v. Ford, 2 Chitty's R. 125.

In the case of Mayhew v. Crickett et al. 2 Swanst. R. 189, Ld. Ch. Eldon said, "there can be no doubt, that it is a question fit to be tried at law, whether, if a party takes out execution on a bill of exchange, and afterwards waives that execution, he has not discharged those who were sureties, for the due payment of the bill? The principle is, that he is a trustee of his execution for all parties interested in the bill."

A mere agreement by the holder of a bill with the drawer for delay, without any consideration for it, and without any communication with or assent of the endorser, will not discharge the endorser, after he has been fixed in his responsibility by the refusal of the drawee, and due notice to himself. Although the endorser has received due notice of the dishonour of the bill, (yet if the holder afterwards enter into any new agreement with the drawer for delay, in any manner changing the nature of the original contract, or affecting the rights of the endorsers, or to his prejudice,) it will discharge him. But, in order to produce such a result, the agreement must be one, binding in law on the parties, and have a sufficient consideration to support it; an agreement without consideration is utterly void, and does not suspend, for a moment, the rights of any of the parties. M'Lemore v. Powell et al. 12 Wheat. 554; Philpot v. Briant, 4 Bing. 717; and see Wild v. Bank of Passamaquoddy, 3 Mason, 505; Hewett et al. v. Goodrich, 2 Carr. & Pay. R. 468.

But if the agreement for delay be on sufficient consideration, the holder thereby sus pends his own remedy to the injury of the endorser, &c. and if such contract be entered into without his assent, he is thereby discharged, &c. Bank of the U. States v. Hatch, 6 Peters, 250.

Time given by the endorsee of a bill to payee, does not discharge the drawer. Claridge v. Dalton, 4 Mau. & Selw. 226; Murray v. Judah, 6 Cowen, 492. But time given by endorsee to payee, discharges the intermediate endorsers; the payee being their

debtor. On this subject, see Bennett v. Maule's adm'x, 1 Gil. R. 305, 307-329.

"Tis no fraud in the holder of a bill of exchange, to make an arrangement with subsequent endorsers, by which it is agreed that the whole burthen shall be thrown on the prior endorsers, and that the subsequent endorsers were not to be looked to, if the money could be made of the first endorsers. Farmers Bank of Va. v. Vanmeter, 4 Rand. 553; Brown v. Williams, 4 Wend. 360; Bailey et al. v. Baldwin, 7 Wend. 289; Badnall et al. v. Samuel, 3 Price E. R. 521.

Merely receiving partial payments from acceptor or maker, will not discharge prior parties. See the cases above cited.

It is inseparably incident to the nature of a bill of exchange, that if the endorsee delays for an unreasonable time to notify to the endorser the non-payment, he thereby discharges him of his responsibility. Wood v. Luttrel, 1 Call, 232; and see Turner v. Leech, 4 Barn. & Ald. 451.

An endorser of a bill of exchange, drawn and endorsed for the accommodation of the drawer, with the knowledge of the endorser that there was no expectation that the bill would be paid by the drawee, is not entitled to notice of dishonour. Farmers Bank of Va. v. Vanmeter, 4 Rand. 553.

The holder of a dishonoured bill of exchange, applied to the drawer for payment, who thereupon, acknowledged the debt to be just, and said he would pay it. He cannot, thereafter object, that he had not received notice; such acknowledgment being a waiver of all notice, [or rather an admission of due notice,] and good evidence to support the declaration alleging due presentment, protest and notice. Walker v. Laverty et al. 6 Munf. 487; Gibbon v. Coggon, 2 Campb. Cas. 188; Greenway et al. v. Hindley, 4 Campb. Cas. 52; Wood v. Brown, 1 Starkie, 217: But see, Trimble v. Thorne, 16 Johns. R. 152; Martin v. Winslow, 2 Mason, 241; Sice v. Cunningham, 1 Cowen, 397, and Thornton v. Wynn, 12 Wheat. 183-188, &c. Walker v. Laverty et al. 6 Munf. 487, sanctioned, Pate v. M'Clure et al. 4 Rand. 184. The opinion of judge Carr is confused, and gives no strength to W. & L. Patterson v. Becher, 6 J. B. Moore, 319; Jones et al. v. Savage, 6 Wend. 658.

The same principles apply to an endorser of a bill or note.

No form of notice to an endorser has been prescribed by law-the whole object of it is to inform the party to whom it is sent, that payment has been refused by the maker; that he is considered liable; and that payment is expected of him. It is of no consequence to the endorser who is the holder, as he is equally bound by the notice, whomsoever he may be; and it is time enough for him to ascertain the true title of the holder when he is called on for payment. Therefore the notice need not state who is the holder. Mills v. The Bank of U. S. 11 Wheat. 431;