
    Suckley against Furse.
    A bill of ex-chan°*e was drawn by the a! in favour°óf to ttopiaMff! sided'Vin°Eng-the*’ Micepbut did not pay it, turned to the tested! ¥he §rew‘ffa ^bin tSFe°ndeféndant amount*? the wí'th'damages’ 7eh tedTy'a onfy, but7was not paid. Held, in an action fendant e as fes^bm^that he was not dtscharged byA.’s acceptance of the second bill. acceptance of
    where a bill of exchange was drawn here, upon a person in Great Britain, during the late country!*1 ^foí toll'd by the" ?ee.ioai2T iish vessel auof°condressato sail from here to an enemy’s port, which was sold by the payee to the plaintiff, who remitted it to foíeacoitoctioiÜ it was- Jield that the remittance of the bill was within the protection afforded to the original transaction, and was not illegal. •
    An not taken at the trial cannot be raised on the argument of the case at bar.
    THIS was an action of assumpsit on a bill of exchange, ** dated at New-Yorh, the 7th of November, 1812, drawn by the defendant, on Edward Angove, of Falmouth, in England, in favour oí Taylor and Newman, or order, for 331/. 3s. 6d. ' sterling, payable in London, thirty days after sight, and endorsed by Taylor and Newman to the plaintiff. The cause was tried before Mr- J. Spencer, at the New-YorJc sittings, in April, 1817.
    The defendant was captain of the British packet Swift-sure, and Taylor and Newman, as his agents, furnished the packet with supplies, a short time before the date of the bill, by the permission of the collector of the port of New-York, and the defendant drew the hill on account of these suPPbfis5 and sold it to the plaintiff, who had no concern in the transaction for which it was giveri. The bill, on being . ® ® a-transmitted to England, was accepted by Angove^ on the 5th of January, 1813, but not being paid, was returned protested to the plaintiff, who thereupon drew a bill on the defen¿anq and Angove jointly, for the amount of the former wj¿jj twenty per cent, damages, at 60 days after sight, The second bill was accepted jn favour of Thomas Holy, who was a partner of the plain-e tiff and resided in England. ° by Angove, but not by the defendant, and was returned to , , . ™ , the plaintitx unpaid-
    The defendant’s counsel objected, that the acceptance of the second bill by Angove only, was a discharge of ■ the drawer of the first bill, which' objection was overruled by the judge, who, however, permitted the point to be reserved, and a verdict was accordingly taken for the plaintiff, ’ ,, . . „ ,, ■, L ■ subject to the opinion ol the court on a case made, contain» . . e , , , , , mg the tacts above stated.
    
      Slosson, for the plaintiff.
    The only question is, whe-
    
      ther, by the acceptance of the second bill, the drawer of the first pill was discharged ? He could be discharged on two grounds only, either by the second bill being a satisfaction of the first; or by the holder giving a new credit, by extending the time of payment. 1. Taking a second bill is no payment or satisfaction of the first, or original debt. (Murray v. Gouverneur and Kemble, 2 Johns. Cases, 438. Tobey v. Barber, 5 Johns. Rep. 68. Johnson v. Weed, 9 Johns. Rep. 310.)
    2. It is manifest that there was no intention on the part of the plaintiff to waive his right to recover against the defendant as drawer of the first bill. The second bill was not drawn to obtain payment of Angove only, but of the defendant also. The acceptance of the second bill by A. alone? was a dishonour of the bill, for it was not accepted according to its tenor. (Chitty on Bills, 127. 2d ed.) Giving time, or taking security of the acceptor, does not discharge the drawer, if he has no effects in the hands of the drawee, and notice of non-payment is not necessary in that case. (Chitty on Bills, 213. 2 Esp. Rep. 516, 517. 1 Bos. & Pull. 652. Hoffman v. Smith, 1 Caines, 157.)
      
    
    Again; the plaintiff is not bound by the act of an agent who exceeded his authority ; Holy had no authority to receive the acceptance of A. alone.
    
      T. A. Emmet, contra.
    
      Holy was not an agent, but a party equally interested with the plaintiff. They were partners.
    In Gould v. Robson and another, (8 East's Rep. 576.) where the holder of a bill, which had been accepted, agreed to draw a new bill on the acceptor, at a future date, and to keep the original bill as security, it was held to be such a giving of time and new credit to the acceptor, as discharged the endorser, though the drawer had no effects in the hands of the acceptor. (Withall v. Masterman, 2 Campb. N. P. 179. Tindall v. Brown, 1 Term Rep. 167. 3 Bro. C. C. 1. Chitty on Bills, 212.)
    
    
      - There is another objection to the plaintiffs recovery. remitt'lng the bill to England, during war, was illegal; but as the effect of the war on the contracts of our citizens has been so fully discussed in a case lately argued and decided, it is unnecessary to argue the question here. The cases mentioned by Chitty, (L. of N. 17. 27.) are exceptions, and recognise the general rule. The plaintiff had no concern in furnishing the supplies to the British packet. The bill was drawn to place funds in England, and was a distinct transaction.
    
      Slosson, in reply,
    said, that as to the suggestion that H. was a party in interest, and not an agent, the fact was settled by the finding of the jury.
    As to the second point; on the declaration of war, an act of congress was passed, (6 July, 1812. 12 Cong. 1 sess. ch. 129. s. 5.) which allowed British packets which had sailed before September to be received into our ports. The Swiftsure was admitted into our ports, under the act. She was exempted from the operation of war, and it was lawful to furnish her with supplies, and to receive payment for them. The bill drawn by the defendant was a good bill. It makes no difference whether the bill was. remitted by the payees or by the plaintiff. The objection applies equally to both. Unless the bill could be negotiated by the payees, it was of no value. The payee's could not go to England to receive the money with their own hands. In Kensington v. Inglis, (8 East, 273.) where an enemy’s ship was licensed to bring certain goods from the enemy’s country, belonging to British subjects, the insurance of those goods by the owners in England was held to be legalized, and the insured might maintain an action on the policy.
    
      
      .) Vid. Collot v. Haigh, 3 Campb. N. P. 282. Walwyn v. St. Quintin, 1 Bos. & Pull. 652. English v. Darby, 2 Bos. & Pull. 61. Bridges v. Berry, 3 Taunt 130. Raggardt v. Axmore, 4 Taunt. 730.
    
    
      
      
         Bishop v. Rowe, 3 M. & Selw. 362.
    
    
      
      
        Griswold v. Waddington, ante, p. 57.
    
   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  