
    James R. McDowell vs. James W. Cook.
    If a thirl party take up a bill for the honor of the drawer, and at his request, at its maturity, he thereby releases the accommodation acceptor of such bill, whether he intended it or not.
    In an action by M. against C., the acceptor of a bill drawn by B. in favor of R., and by R. indorsed to M., the court instructed the jury, that if they believed, from the evidence, that the plaintiff took up the bill at its maturity at the request of B., the drawer, and for his benefit, it was a payment of the bill, and they must find for the defendant, and that whether M. and B. intended to release the acceptor or not: Held, there being proof that C. was accommodation acceptor of B., that the charge was correct.
    Error from the circuit court of Warren county; Hon. George Coalter, judge.
    This was an action of assumpsit, brought by James R. McDowell against James W. Cook, on a bill of exchange drawn by James Bland on J. W. Cook & Co., and by them accepted, in favor of Church & Robb, and by them indorsed to the plaintiff. The declaration was in the usual form, and the defendant pleaded non assumpsit. At the trial, the plaintiff read in evidence to the jury the bill of exchange sued on, and rested his case. The defendant then read the answer of the plaintiff to a petition for a discovery, which admitted that he took up the bill of exchange sued on at its maturity, at the request of Bland, but denied that there was any understanding or agreement that J. W. Cook & Co. should be released, and the plaintiff look to Bland alone, for payment. The answer admits that Bland put some property, in the possession of the plaintiff, but denies that it was to pay, or in any manner secure the bill of exchange sued on, and avers that it was intended to pay other debts due by Bland to the plaintiff, and that it did not pay those other debts by about $2800. The answer denies that the plaintiff ever agreed to release, or was ever asked by any person to release J. W. Cook & Co.; that he supposed them to be acceptors for value, and he of course intended to look to them for payment. At the time the bill was taken up, it was distinctly understood between Bland and the plaintiff, that both acceptors and drawer should be held liable to the plaintiff for the money. The defendant also read a letter written by the plaintiff, in answer to a letter from Bland, in which the following language is used : “ The payment of J. W. Cook & Co.’s acceptance when you get cotton out, will be satisfactory.” P. W. Tompkins was then introduced as a witness on behalf of the defendant, and testified the bill of exchange sued on was given for goods furnished the witness, at the request of Bland, by Church & Robb, and that J. W. Cook & Co. were merely accommodation acceptors, who were assured by Bland at the time they accepted it, they should never be troubled with it. The plaintiff was not present when this assurance was given, and witness could not say whether the plaintiff knew that J. W. Cook & Co. were accommodation acceptors or not. This being all the evidence offered on either side, the court, on motion of the defendant, instructed the jury, “ that if they believed the plaintiff took up the bill of exchange sued on at its maturity, at the request of Bland, and for his benefit, it was a payment of the bill, and they must find for the defendant;” and added, “whether McDowell & Bland intended, when the bill was taken up, to look to the acceptors for payment, or release them or not, if the plaintiff took it up at Bland’s request, and for his benefit, the bill was discharged, and ‘the defendant released.” The jury found for the defendant, and plaintiff moved for a new trial. 1st, because the verdict of the jury was contrary to the evidence, and 2d, because the court erred in the charge to the jury. The court overruled the motion for a new trial, and the plaintiff has brought the case to this court by a writ of error.
    
      Smedes and Marshall, for the plaintiff in error.
    We think the judgment below should be reversed, because the instruction of the court was too broad, and calculated to mislead the jury, and because the court erred in refusing to grant a new trial. It is manifest, from the evidence, that the plaintiff, when he took up the bill of exchange sued on, did not intend to pay it, or release any of the parties on it; indeed, he states in his answer to the petition for a discovery, and that is the only evidence offered of the payment of the bill, that it was expressly understood that he should look for payment to the acceptors as well as drawers. But according to the opinion of the court below, it was wholly immaterial what his intentions or understanding with Bland may have been when he took up the bill, provided it was taken up at the request of Bland. In this opinion we contend lies the error of the court below. If McDowell did not intend to give credit to Bland, and pay off the bill for him, and it is positively proven he did not, he became the purchaser of the bill when it was indorsed to him by Church & Robb, and thereby acquired all the rights, and became entitled to all the remedies which they possessed before the indorsement. Suppose, in his answer to the petition for a discovery, the plaintiff had used the words “purchased the bill,” instead of the words “took up the bill,” no one could have doubted his right to sue and recover on the bill either against the drawers or acceptors. And that too, whether he purchased at the request of Bland or not. Or suppose J. W. Cook & Co. had in fact been, as McDowell believed they were, acceptors for value, would he not clearly have had a right of action against them on the bill, no matter at whose request he purchased or took it up? If McDowell intended to pay the bill for Bland, and thereby discharge the acceptors, why, we ask, was it indorsed by Church & Robb to him instead of delivering it up to Bland? The indorsement is prima facie evidence of a purchase of the bill, and all the circumstances in the case we think tend to corroborate, rather than rebut that presumption, notwithstanding the plaintiff in his answer uses the words “ took up the bill.” The fact of Cook & Co. being accommodation acceptors, ought not, and cannot prejudice the plaintiff’s rights. By accepting the bill they acknowledged to the plaintiff and the world that they had funds of the drawer in their hands, and that they would pay the amount of the bill to whoever might become the legal holder of it. The plaintiff swears he believed the acceptors were the*real debtors, and there is no evidence' conducing even to prove he knew they were not. Must they not then bé treated, so far as he is concerned, as the real debtors, whether they were in fact accommodation acceptors or not? If this view of the case be correct, there was no evidence whatever to support the verdict of the jury,
    
      George S. Yerger, for defendant in error.
    The court charged the jury in accordance with the law, “ that if they believe McDowell paid the bill at the instance and request of Bland, and for his benefit, the bill was paid, and the acceptor discharged.”
    The jury found for the defendant.
    I see no error; the bill was paid at the instance of Bland. Any agreement they could make that McDowell should pay the bill, and hold the acceptors notwithstanding liable, where it was an accommodation bill, would not be sufficient to keep it alive. Payment of the bill by any person is a discharge.
    The jury found according to weight of evidence, and the evidence should be strong to induce this court to set it aside.
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action brought by McDowell as an indorser of a bill of exchange drawn by James Bland and accepted by Cook. The acceptance was without consideration, and for the accommodation of Bland. The bill w,as taken up at maturity by McDowell at the request of Bland. The sole question grows out of the charge of the court to the jury upon the trial. That charge was as follows: “ That if they believed from the evidence that the plaintiff took up the bill at its maturity at the request of Bland, the drawer, and for his benefit, it was a payment of the bill, and they must find for the defendant, and this whether McDowell and Bland intended to release the acceptor or not.”

This charge lays down the law quite as favorably for the plaintiff, as is warranted by the authorities. Chitty thus states it“ If a person take up a bill for the honor of the drawer, he has no right of action against the acceptor, if he accepted it for the accommodation of the drawer.” Ch. on Bills, 542. The same rule is laid down in Ex parte Lambert, 13 Ves. 179; and the reason is given, that if the drawer had taken it up himself, no action would lie upon it, and a third person taking it up for him must occupy the same position.

The judgment below was for the defendant, and the same is affirmed.  