
    WASHINGTON COUNTY.
    June Term, 1792.
    George Henry, surviving obligee of Abraham Usher, v. William Donnaghy and John Morrison, Executors of John Donnaghy.
    THIS was an action of debt on a bond dated 17th July, 1776, for the payment of 50l. 3s. 8d. on the 1st August ensuing the date, with interest from the date.
    
      On 17th July, 1776, John Donnaghy gave to the plaintiff an order drawn by Edward Hand on James Milligan, merchant in Philadelphia, dated 13th July, 1776, for 27l. payable to John Donnaghy or bearer, at forty days fight. And the plaintiff gave Donnaghy a receipt for the order, purporting that credit was to be given on the bond for it, when paid. In 1786, Donnaghy sent by a friend, the residue of the debt and interest to the plaintiff, who then refused to give credit for the order, and offered to return it. This was rejected, and the residue of the money was not paid because credit would not be allowed for the order. In 1788 this suit was brought. It did not appear that there had been any demand on Milligan, or any notice to Donnaghy that the order remained in the plaintiff’s hand till in 1786, nor was it ever offered to Donnaghy, nor to his executors till after this suit was brought.
    
      Ross, for the defendant.
    The order, being retained so long, amounts to a payment of so much. Donnaghy could not, at this distance of time recover from Hand the drawer.
    
      Woods, for the plaintiff.
    
      Usher and company could not sue on this order in their own names. The receipt shews, that no credit was to be given till the order was paid. In 1786, in 1788, and now, Hand and Milligan are both in undoubted circumstances, and there is no instance when the not returning of a bill has been held a payment, unless there has been an insolvency of the drawee.
    
      Chamberlayne v. Delaree, 2 Wils. 353.
    1 T.Rep.405.
    
   President.

This difficulty is not likely to occur often, where the drawee is in good circumstances and has not refused payment; for then there is no inducement to apply to any other. But, since giving an order is held to be a giving credit to the drawee, and therefore a payment, I see no reason why it should not be, so in all cases ; so that such holder should never be allowed to have recourse to the drawer, who had effects in the hands of the drawee. The holder, who gives credit, takes all risk of recovering from the drawee ; for the drawer undertakes that the drawee will accept and pay at the time; but if the holder gives further time, he makes a new contract, and discharges the drawer. The holder undertakes to demand ; and, before he can recover from the drawer, or any indorser, (for every indorser is as a drawer) he must shew a demand on the drawee, and a refusal. The circumstances of the drawer and drawee ought to make no alteration. If they be good, so much the better for the holder, the plaintiff, unless he has precluded himself, by his own negligence. If they are otherwise, the defendants ought not now to run the risk. I lay no stress on the want of an indorsement. The receipt and the delivery of the order shew the meaning of the parties. John Donnaghy undertook to lend his name to Abraham Usher and company, for the recovery of this money from Milligan ; and Abraham Usher and company, undertook to demand this money. This demand has never been made. There ought to be credit given on the bond for 27l. as paid forty days after sight, allowing a reasonable time for that.

Note.—See the case of Stedman v. Gooch.—Espinasse's Reports of Cases at Nisi Prius, 3.

The jury found a verdict accordingly.  