
    James Crwford vs. Henry Swearingen.
    A release of all actions and causes of action, given to the acceptor of a bill of e£ Change, on a composition with creditors, does not embrace money afterwards paid as indorser, when the bill had been negotiated before due, and, at the date of the release, was bona fide held by a third party.
    Tuts is a Writ of Error to the Supreme Court of Jeffer* son County.
    The suit below was assumpsit, in which Swearingen declared as payee of a bill of exchange for ($4,000, dated June 8, 1839, drawn, by Crawford, payable sixty days after date to the order of Swearingen, on William Forse, and by him accepted.
    The declaration contained, also, the common money counts in assumpsit. Plea — general issue.
    The bill had been made for the accommodation of Forse, the acceptor, and was indorsed by Swearingen and one John Brag, with a view to being discounted in bank ; but the bank refusing to discount, Forse sold it for value to Christopher C Wolcott. Being protested for nonpayment, Wolcott sued Crawford as drawer, and Swearingen as indorser, and collected part of the amount from each. This suit was then brought against Crawford, as drawer, by Swearingen, to recover the amount he, as indorser, had been compelled to pay Wolcott.
    On the circuit, the plaintiff below had verdict and judgment, to reverse which, this writ is brought.
    
      In Bank.
    Dec. Term, 1846.
    The bill of exceptions and depositions annéxed, will exhibit the defence set up:
    And now, viz: at this term, this cause came on to be tried before the Court and jury, when the plaintiff, to maintain the issue on his part, gave in evidence to the jury, the bill of exchange described in the declaration, and, also, gave evidence to prove, that the bill, within one or two days of the day of its date, was sold by William Forse, the acceptor, to Christopher C. Wolcott, for a full consideration, who held it until it became due, and that when due, it was duly presented for payment, and protested for nonpayment, and that due notices were given to the drawer and indorsers of such demand and protest. He also gave in evidence, a record of a judgment in favor of Christopher C. Wolcott against Henry Swearingen, the plaintiff in this suit, in an action against him, as indorser on the same bill of exchange; and, also, gave evidence to prove, that said Wolcott had collected from said Swearingen, a part of the amount of said judgment, the residue of the amount of said bill having been paid by said James Crawford, Jr. to said Wolcott. The defendant, to maintain the issue on his part, then proved the execution of an instrument, of which the following is a copy, by Henry Swearingen, and gave the same in evidence to the jury =
    “ Know all men by these presents: Whereas, William Forse, c by his deed, duly executed, bearing date the 26th of June, ‘ 1839, assigned all his estate to Peter Graaf, in trust for his ‘ creditors, to which reference may be had; wherefore, know c ye, that the undersigned, creditors of the said William Forse, ‘ in consideration of the said assignment, have remised, released ‘ and forever quitclaimed the said William Forse, his executors ‘ and administrators, from all claims, demands, action or actions, ‘ cause or causes of actions, whatsoever. Witness our hands ‘ and seals, the 27th day of June, in the year of our Lord one ‘ thousand eight hundred and thirty-nine.”. Signed and sealed by Swearingen, and other creditors.
    
      Both the defendant and the plaintiff gave evidence to prove, that there were other dealings between the said Forse and the said Swearingen, at the time of the execution of said release, besides the said bill of exchange, which appears in the depositions hereto attached, marked A, B and C, filed herewith.
    The defendant thereupon prayed the Court to instruct the jury, that the only claim of the plaintiff against defendant, or the acceptor, upon the subject matter of this suit, was upon the bill of exchange, and that the release given in evidence, was a discharge of the acceptor from the bill,, in the hands of the plaintiff, and that the defendant was thereby discharged; which instruction the Court refused to give, but did instruct the jury, that if they should find that the bill had been indorsed by the plaintiff before the execution, by him, of said release, and that he had no interest in it at the time, and it was then held by an indorsee for a valuable consideration, that the plaintiff would not be barred by the release, (after he should have, subsequently to said release, been compelled to take up said bill, and have paid money on account of it,) from recovering in this suit for the money so paid, and that the defendant would not be thereby discharged; to which instruction the defendant, by his counsel, excepted, and prayed the Court to seal this, his bill of exceptions, which is accordingly done.
    By the assignment of errors, it is averred —
    First: ' That the Court érred in refusing to instruct the jury, that the only claim of the said Swearingen against the said Crawford, as acceptor, was upon the bill of exchange, and that the release was a discharge.
    Second: In instructing, that if the bill had been indorsed, and Swearingen had no interest in it at the time, but that it was held by Wolcott, as bona fide indorsee, the release could not operate to bar the recovery, &c.
    
      
      Roswell Marsk, for Plaintiff in Error.
    
      The errors assigned and relied upon, are two, and arise upon a bill of exceptions sealed upon the trial of the cause in the Supreme Court.
    The first error assigned, is, that the plaintiff in error prayed the Court to instruct the jury “ that the only claim of the plain- £ tiff against the defendant, or the acceptor, upon the subject £ matter of this suit, was upon the bill of exchange; and that £ the release given in evidence was a discharge of the acceptor ‘ from the bill in the hands of the plaintiff, and that the dec fendant was thereby discharged.” Which instruction the Court refused to give.
    Was the plaintiff in error legally entitled to such instructions ? I submit that he was, and that the refusal deprived him of his rights. It is too well settled to be controverted at this day, that if the holder of a bill give time to the acceptor, even for a day, he thereby discharges all the intermediate parties from liability on the bill in his hands, unless it was done with their consent. It is equally well settled, and on much stronger grounds, that a release of the acceptor discharges all such parties. The ground of both is, that the acceptor is the real debtor, and has the funds in his hands. The drawer and indorsers are securities for him, and liable only. on his default. Now, if a party to the bill gives further time, or in other words extends the time of payment before the bill falls due, or releases the acceptor, he is not entitled to demand payment at the maturity of the bill, and, as a necessary sequence, could not, with truth, notify the. securities that the acceptor had violated his contract, and that they would be looked to for payment. The reason is obvious. There was no such subsisting contract to pay at that day. It had been changed for a contract to. pay at the next or some subsequent day, or released. The drawer and indorsers are not securities for the new contract, if any; and the old is gone. Hence their discharge.
    
      A release of the acceptor, instead of postponing payment f°r a day or so, merely, extinguishes the debt forever. With what propriety could Swearingen, in the face of the release, demand payment of Forse ? He had given up all claim on him, personally, and agreed .to look to his estate in the hands of the trustees for payment. When, therefore, he demanded payment of Forse, as stated in his declaration, he set up a false claim. Forse owed him no such debt. His notice to Crawford, the drawer, could only be valid to charge him on the hypothesis that a subsisting and valid debt had been duly demanded. Swearingen could not, with truth, assert that such a demand had been made ; for Forse owed him nothing on the bill. But it may be answered that Swearingen did not make the demand and give the notices, hot being the holder when the bill fell due, and that the then holder had a valid right to make such demand and fix the securities by notices.
    This, if conceded, cannot help his case'. It is, undoubtedly, true that an indorser, when he receives notice of demand and protest, may rely upon the holder’s diligence to charge those to whom he is entitled to look for payment; or he may give notice himself, in which case he has a day after he gets notice, to do so, and may fix them to him, although the holder had failed to make them responsible to himself. The holder, however, cannot avail himself of a notice given by his indorser. The reason, I apprehend to be, that the indorsee, the holder, has no interest in the bill in the hands of'his or any prior indorser; but all prior parties have such an interest in the bill in the hands of the holder as makes his act their act, if , they choose to claim it. He is pro hac vice their servant. The principle applies quod facit per alium facit per se. His demand and notice are their demand and notice; and in this case, as in all others, are declared upon as such. But can a party make demand and give notice by a servant or another, when he would have no right to do it himself if the bill were in his own possession? It seems to me that one need only ask the question, • to expose, in strong light, the absurdity of an affirmative reply. In wha't character had he an interest in the bill ? Long established principles admit of but one answer to this question: It was as payee. As payee, he declares uporf it; and you look into the declaration in vain to find that he ever had an interest in any other character. True it is, that ?ome weak attempts have been made in some cases in England, and perhaps in this country, to make out a new title by a circuitous set of indorsements coming back to a former holder, but they were promptly met and defeated.
    His declaration, then, is right. He holds his original title, or none. He holds it precisely as if it had never been out of his power or possession, and is just as much bound by any act of his, in the mean time, as if he had never indorsed it. But this point does not rest upon principle only, however clearly it may admit of demonstration. The question has been before the courts, both in England and in this country.
    
      Scott v. Lifford, 1 Camp. Rep. 249, was an action by the payee, against the acceptor, on a bill of exchange. The defendant called the drawer as a witness, and he was objected to, on the ground of interest. The drawer executed a general release to the acceptor, when he was still objected to, because, when he had taken up the bill, he would have a new .cause of action. But Lord Ellenborough decided, that he would have no other than his old title, which was barred by the release, and admitted the testimony.
    In Cóe v. Hutton, 1 Serg. & Rawle, 398, the case was, Coe & Son, Jan. 20, 1804, gave a promissory note to Hutton, for $800, at ninety days, which Hutton indorsed to Bernard. Bernard sued Hutton on the note, and recovered the money. On the 13th of April, 1804, the Coes made an assignment of all their estates, for the benefit of their creditors; and Hutton, amongst others, in consideration thereof, executed to them á general release, dated April 14, 1804. The note fell due with the days of grace, April 23, 1804, and must have been in Bernard’s hands at the time of the release. The Common Pleas held that the release did not bar him, because the note was not in his hands when the reléase was executed, and therefore Coes owed him nothing -on- the note until he. had' paid, it to Bernard. The declaration was for money paid, and' for -money had and received: .On error in’the Supreme Court, Tilgliman, C. J., denies that proposition entirely. After stating the. position, he says:' £?N’owf,. the present action cannot-be supported, £ but by reason, pf'the note which was given before the release. £ It cannot be shown.that 'the plaintiffs paid money oii.account £ pf. the defendants, without producing that rióte,-and accord- £ ingly-it was given in evidence on ;the part of the plaintiff. — - £ To'say that.a man, who knows he is liable to pay- a-sum of ‘.money-on any account, may'not bind' himself not to'have re- ■£ course to one, after he shall 'have paid the money, is, in,my ,£ mitad,'.unreasonable in' the highest degree. Some of the old £ cases go' á. great way against such- a release.. But of late there £ has been more liberality of principle. The case of ■ Scott v. ‘'■Lifford, is in point.” Yeates, Justice, holds language equally decisive; .and the judgment-Was reversed.' ' •.
    .Two reasons have -been urged why the release- is not', a bar, and probably will be' again— ■ • - '
    .' First: .■ That the bill was not due by lapse, of time ;■ and,
    
    Second: . That the releasor had' not'.the bill then in- his hands. • ' ’ .
    
      Coe V. Hutton, is a direct authority to both points y' and Scott v. Lifford, to the iast. Coke lays it down expressly —- Coke, 291, b. 3;'Th. Coke, 340 — that, by a release of all de-, mands, a;bond‘ not yet'due is released; and, by a reléase of all covenants, a covenant, to do a specific thing, is. released, although not ’ yet broken. Another direct authority on both points, is, Cuyler. v. Cuyler, '2 Johns. R.ep. 186; suit on a promissoiy note, dated May 13, 1803, at nine months, made by defendant, payable to the plaintiff. The note was indorsed by the plaintiff do one Smith, as security for a debt due, him from the- defendant; and the plaintiff, as indorser, had paid the note to Staiith. The defendant, on the trial, .gave in evidence a writing, dated February 10, 1804, six days- before'the note was due, in which the plaintiff bound himself in a penalty to the defendant, not to sue him unless on a future contract. The Court ruled that the writing did not operate as a release of the note. On error, the ground was urged, in argument, that Smith held the note at the date of the release, and that Cuyler had then no right of action on the note, and that the release could not operate upon a right which did not exist; that future contracts were expressly excepted, and that the claim' of the plaintiff was on a contract subsequent to the bond.
    But to this the Court reply: “ The plaintiff prosecutes upon £ the note itself, given by the defendant to him, which bears £ date nine monthjs before the bond set up as a release. We £ therefore cannot take into consideration the circumstances, £ that the note was given for a debt due from the defendant, to £ Smith, for which the plaintiff became surety, and was obliged £ afterwards, and after the date of the bond, to pay to Smith.” The Court, then, consider the suit on the note as standing precisely as if the note had never been out of the plaintiff’s hands, and that the bond barred the note, although not yet due by lapse of time. The Court express the opinion, that an action for money, paid as surety,-might have been sustained; but that point was not before them; and, with deference, it is not easy to see how he could prove his case without the note, which would bring it directly within Coe v. Hutton. Besides, it would be very like trifling with such solemn instruments, to reduce them to performing the miserable office of adding a count to the declaration. But however that may be, as between the real debtor and the holder of the bill or note, I apprehend that, if the action or right on the bill or note itself is gone by the release, the drawer or indorser incur no liability on a new contract, arising by implication, upon the payment of money for the acceptor long subsequent, with which they had nothing to do. :
    An attempt may be made to distinguish this from Coe v. Hutton, Scott v. Lifford, and Cuyler v.- Cuyler, on the ground, that the releases in those cases contained clauses of a prospective character. But such clauses do not, so far as they aPPty to matters in which the parties to the release were previinterested, enlarge the scope of the instrument at all, and are not relied upon by the courts as grounds of decision, but the reverse evidently; and, beyond that, they are clearly void. Had Hutton or Cuyler, the day after the releases were executed, taken indorsements of notes or bills, to which the defendants were parties, the releases would not have applied to them, although subsisting paper at the time, because the releasors would have acquired a new right in them, which they were not prohibited by the releases from doing. I need not urge, that they could not release a contract not yet made. The cases, then, must rest upon there being a subsisting contract, capable of being released, and, as such, must govern this case, being, in point,'to show that the acceptor was discharged. The effect of the discharge upon the liability of the drawer, is a corollary, respecting which there can be no doubt.
    There is another test to which I will, for a moment, call the attention of the Court. The release is in consideration of an assignment, to trustees, for the benefit of creditors. Were the assignment, as in Coe v. Hutton, restricted to the releasing creditors, which is the fact in nearly or quite all Pennsylvania assignments, could there be a doubt that Swearingen would be entitled to put in the bill for a dividend, before the trustees, as a released debt in his hands ? It seems to me there could not. If this be so, surely he cannot call upon Forse, on his personal responsibility, for payment, and, therefore, surely not upon his sureties.
    The second error assigned, is, that the Court instructed the jury upon the points made, directly the reverse of the instruction prayed by the defendant below. The examination of the one involves the other, and I need not repeat what I have already said.
    
      
      E. M. Stanton, for Defendant in Error.
    By referring to the release, set forth in the bill of exceptions, it will be found to have been executed upon a composition by Forse with his creditors, for whose benefit the assignment was made to Graaf, they being willing to receive the proceeds of the assignment and discharge Forse from all further liability.
    The release declares upon its face, that the consideration was the assignment by Forse in trust “ for his creditors;” that it was executed by the “ undersigned creditors,” who, therefore, release him from “ all claims, demands, action or actions, cause or causes of action whatsoever.” The assignment being thus made, solely for existing liabilities, the release could operate only upon such existing liabilities, unless, by express terms, its operation was further extended. The transaction, as stated in the instrument, had'reference only to an existing relation of debtor and creditor, and contains no reference to any future or contingent liability or relation. It appears, moreover, from the proofs, that at the date of the release, the relation of debtor and creditor existed between Forse and Swearingen for flour sold, amounting, as Forse states in his deposition, to between one and two hundred dollars. ' This constituted the whole amount of ForseJs then existing liability to Swearingen. It further appears, that Swearingen was not then holder of the bill, and, hence, that he had no claim by reason of it, and never would have, unless it should be dishonored and Swearingen compelled to take it up. It appears, then, from the instrument, as well as by the statement of Forse, “that the release related ‘ only to the indebtedness for flour, and not to the draft. The ‘ draft, at that timé, had not matured, and was not intended to ‘ be included in the release.” . .
    Does the release, by operation of law, constitute a discharge more general than is expressed by its terms, and contrary to the intention of the parties ?
    To show that it does, the following cases have been cited by the plaintiff in error: Cuyler v. Cuyler, 2 Johns. Rep. 186; 
      Coe v. Hutton, 1 Serg. & Rawle 398; Scott v, Lifford, 1 Camp. 249.
    
      Cuyler v. Cuyler, 2 Johns. 186, was assumpsit ón a note dated 13th May, 1803, payable to the plaintiff nine months after date. The note had been indorsed by the plaintiff to one Smith, as security for a debt due to him from the defendant, and the plaintiff, as indorser, paid the note to Smith. On the trial, the defendant gave in evidence a writing, dated 10th February, 1804, executed by .the plaintiff and one John Cuyler, in which they bound themselves to the defendant, in the penal sum of ten thousand dollars, with a-condition not to institute any suits against the defendant, “ unless on a future contract, either ‘ as partners or separately, and that the plaintiff should dis- ‘ continue his suit, and no more prosecute the same.” This instrument was held to operate as a release, and the Court said:
    “ The plaintiff prosecutes upon the note itself, given by the ‘defendant to him, which bears, date nine months before the ‘ bond set up as a release. We, therefore, cannot take into ‘ consideration the circumstances, that the note was given for a ‘ debt due from the defendant to Smith, for which the plaintiff ‘ became surety, and was obliged afterwards, and after the date ‘ of the bond, to pay to Smith. Had the suit been- for money ‘ thus paid, as surety, the cause of action would have arisen ‘ subsequent to the date of the bond, and would not have been ‘ affected by it.”
    Now, in applying the principles recognized in Cuyler v. Cuyler to the case before the Court, it would appear to be an authority directly sustaining this action. -For, in Cuyler v, Cuyler, the .action failed, because the suit was brought upon the note alone, which, on its face, expressed an absolute contract between' the parties, prior to the date of the instrument set up as a release, and was, therefore, expressly within its terms. And it is distinctly stated by the Court, that, had the suit embraced, as in the present instance, a claim for the money paid, the action would have been sustainéd. The case, therefore, fully justifies the ruling of the Supreme Court .below.
    
      In Coe v. Hutton, 1 Serg. & Rawle 398, the release was: ££ All actions or causes of action, suits, bills, bonds, writings, £ obligations, debts, dues, duties, reckonings, accounts, sums of ‘ money, claims, damages and demands whatsoever, which they £ ever had, then had, or thereafter might have, claim or de- £ mand, by reason or means of any act, matter, cause or thing ‘ from the beginning of the world to the day of the date of the £ assignment.” The Court, according to the express import of its terms, held this to be a release, not only of present and existing, but of future causes of action — having reference to any preceding £i act, matter, cause or thing;”
    ££ It is,” said Tilghman, C. J., ££ a release of all actions, causcs of action and demands which the releasee then had or £ might in future have against the defendant, by reason or means £ of any act, matter, cause or thing, from the beginning of the £ world to the date of the release.” The payment, although occurring after the execution of this instrument, was included in its terms. And Yates, J., places his opinion upon what he terms, ££ the most comprehensive words ” used in the release.
    Now, the instrument executed by Swearingen does not contain these words, or any word or. expression referring to a future cause of action or contingent liability, but is limited to positive and existing liabilities..
    So, also, in Scott v, Lifford, 1 Campbell,'250, referred to in the preceding case, the decision went upon the comprehensive terms used in the release, which was for ££,alí actions and causes ‘ of action which he, the said defendant, then had or which he, ‘ his heirs, executors or administrators should or might at any ‘ time thereafter have, for or by reason of any matter or thing £ whatsoever, from the beginning of the world unto the day of ‘ the date of said writing of release.”
    Lord Ellenborough said; ££ the transaction was already past which was to lay the foundation of future liability;” and, hence, as the subsequent cause of action had reference to the prior transaction, it was included in the terms and operation of the release.
    
      But, in neither of these cases was it pretended that an imstrument, including only the terms employed in the writing executed by Swearingen, would have operated to discharge the future cause of action. And, as we have already seen, it was held, in Cuyler v. Cuyler, 2 Johns. Rep. 186, that such release does not discharge the liability arising upon the subsequent payment of the money upon a preexisting note.
    The doctrine held by the Court on the circuit, is also directly established by Chitty on Bills, 342. “ And it seems, that if a £ creditor for goods sold is also indorsee of a bill of exchange, £ which he has indorsed to a third person for valuable con- £ sideration, who, at the time of the execution of a composition £ deed by the creditor, is the holder of the bill, and the creditor ‘ sign the deed containing a release, but without specifying the £ amount of his debt, the composition would extend only £ to the amount of the goods sold and bills actually in his hand £ at the time he executedChitty on Bills, 342. The present case is within the terms of this authority.
    Swearingen was creditor for goods sold, viz., flour to the amount of one or two hundred dollars, as stated by Forse. The bill had been indorsed for valuable.consideration to Wolcott, and was outstanding in his hands unmatured, ££ at the time of the execution of the composition deed.” The release was executed by Swearingen without specifying his debt; but, as Forse says,.was not intended to embrace the bill; The release, therefore, could ££ extend only to the amount of goods sold.” Two cases are cited by Chitty, Harrhy v. Wall, 2 Starkie Rep. 195 ; and Margetson v. Aitkin, 3 Carrington and Payne, 338. In Harrhy v. Wall, the bills being in the hands of the indorsees, Buckle & Co., merely as agents for the plaintiffs, they were considered as being in the plaintiff’s hands, and' therefore discharged by the release. But on a motion to set aside the nonsuit, the Court held, that if Buckle & Co. were indorsees for value, then they would have been the creditors of the defendant for the amount, so that the release would not have operated; 2 Stark. Rep. 195. So, if Wolcott had held the bill as the mere agent of Swearingen, at the execution of the composition deed, there would have been ground to consider the bill discharged by the release. But Wolcott being holder in his own right, according to the authority just cited, he, and not Swearingen, was F.orse’s creditor upon the bill, which, therefore, could not be affected by Swearingen’s release.
    
      Margetson v. Aitkin, 3 Carrington and Payne, is thus reported: “Assumpsit, by the plaintiff, as indorsee, against the ‘ defendant as indorser of three bills of exchange, amounting ‘ together to £41 13s. 6d.”
    The defence was, that after these bills had been given', but before two of them became due, the defendant had compounded with his creditors, and that the plaintiff had executed the deed of composition, the plaintiff’s debt being there stated at £27. However, it also appeared, that the two bills that had not become due at the time of the executing of the deed of composition, had been indorsed over by the plaintiff, and were not then in her hands; but that the other bill, which was for $10, was then in her hands as a dishonored bill.
    Lord Tenterden, C. J. “The utmost effect that can be ‘ given to Mr. Gurney’s argument, and to the deed, is, that the * plaintiff releases whatever debt is due to her. But I am of 1 opinion that that deed cannot be taken as a release by the ‘ plaintiff, as to the bills then outstanding, undishonored, in * other hands. It does not, I think, apply to two of the bills. ‘ As to the remaining bill, I think that the plaintiff cannot re- ‘ cover on it, as that was dishonored at the time of executing ‘ the deed.” Verdict for plaintiff.
    It would thus appear, from all the cases, that in order to make the release operate upon the bill, the person releasing should have been actually, or constructively, its holder, at the execution of the release. Story on Bills, treating of releases, and their operation, sec. 263, 269, 270, 430, 431, 432, 433, and 440, has reference, in every instance, to releases by the holder. So also in Story on Promissory Notes, sec. 422, et sequente. And unless the release, by express terms, has relation to- a future or contingent, as well as present liability, as in Coe v, Hutton, and, Scott v. Lifford, it will not operate to discharge such liability.
    The release in question, being upon composition by Forse with his creditors, a relation existing between him and Swearingen for goods sold, and having no reference to the bill of which Swearingen was not holder; and the release, moreover, by its terms and intention, applying only to present and not to future or contingent liability, it cannot be set up to defeat this action. And the ruling in this case, by the Court below, seems to be fully established, not only by the authorities cited in behalf of Swearingen, but also by those cited for the plaintiff in error.
    
      Marsh, in reply.
    The counsel for the defendant in error, insists and bases his whole argument upon the principle that the term “ holder,” as used by Story and other elementary writers, is applied to the person holding the bill at the time of his executing the release. This is an entire misconception. It is used as synonymous with plaintiff; that is, the holder at the time of trial; and every case cited will require this to make it intelligible. I cannot find the quotation from Chitty in the copy I have here, but I have the authorities cited to sustain the position, and I thank the counsel for them.
    In Harrhy v. Wall, the release did not contain any prospective words in the instrument. It was shaped to specify the amount of the claims released by each, but the plaintiff declined- to specify the amount of his. When afterwards called . upon to specify the amount, he claimed that the note was to be paid. He did not specify the amount of his claim. He had a claim besides the note. It does not appear whether or not he had taken up the note when he claimed that it should be paid. It is very clear he was not the holder when he executed the release. He had indorsed it; a bank had discounted it and credited him with the amount. They owed or had paid him the money. The note was theirs. The plaintiff put it on that ground and insisted, as in this case, that he then had no claim to be barred. The Judge says not a word of Buckle & Co. being his agents, but distinctly sustains the principle of his own decision in Scott v. Lifford, and says Harrhy was entitled, under his release, to the composition on the note. He had taken it up when due and dishonored, after the release. On the motion to set aside the nonsuit, it is said, the Court concurred with Lord Ellenborough. So far, is perfectly intelligible. A blundering reporter has given a reason which is not only at variance with the grounds of the decision, but he puts it on a matter of fact which that Court would never have decided without the intervention of a jury, viz: whether or not Buckle & Co. were the agents of the plaintiff? This, then, is a full authority for the plaintiff in error. In Margetson v. Aitken, 3 Car. & Payne, 338, the release was of a debt amounting to £27. The plaintiff sued on three bills, amounting to £41 13s. 6d. The case is very loosely reported. At the time of the release, the plaintiff held one of them and had indorsed the other two. The syllabus is, that the bill he held exceeded the amount stated in the release. The text states it at £10. Under this special release, the Court held, at nisi prius, that the bill then in his hands was released, and that the others were not. The case was not moved in Bank. Any general language reported as used by the Court, is, of course, to be taken as applied to the terms of that release. The general expressions beyond that, are not authority, and are at variance with all the decided cases.
    The effect of a release cannot be controlled by the intentions of the parties, not expressed in the instrument. The statement of Forse, therefore, that the release was not intended to cover this bill, cannot affect the matter, even if true; but he admits that nothing was said, so that any such intention was a mere mental reservation, which none but Omnipotence could know, so far as Swearingen was concerned. See Story on Bills, sec. 431.
    The case of Cuyler v. Cuyler, is nearly confessed to be a direct authority against the plaintiff below, so far as the counts on the bill, and recourse is had to the dictum of the Court to SUS(;ajn this judgment on the common count. That was a suit against the maker of the note, the principal debtor; this is a suit against a security on the bill. If, according to that dictum, a.new cause of action accrued to Swearingen against Forse, after the release on an implied contract for money paid to Wolcott, (which I deny,) what had Crawford to do with that contract ? He was no party to it as security or otherwise. If Forse was not liable to Swearingen on the bill, in consequence of the release, his appropriated demand of payment, protest, and notice to Crawford, were all false assumptions, which he had no right to make, and, therefore, cannot claim them when done by others. Without the bill, as a valid claim against Crawford, Swearingen has no cause of action against him.
   Birchard, .J.

The instructions given, may well be considered in connection with .those refused. There can be no doubt in this case, as to the intention of the parties. If the release has the effect to bar the claim of Swearingen, it effects what he never intended. The object of Forse and those of his creditors who signed his release and compounded with him, was merely to discharge him “ from all claims, demands, action or actions, cause or causes of action whatsoever,” which they then had against him. Swearingen had such a claim or demand , as these words would embrace, at the time. It was an existing liability for flour sold, which created betvveen him and Forse the relation of debtor and creditor. Upon that claim, thp release was designed to operate, and, as to that, it was a discharge.

Whether it could operate upon the liability that grew out of the nonpayment, protest, &c., of the bill of exchange, depends entirely upon the intention of the parties, to be gathered from the language of the release and state of facts then existing. It must be borne in mind, that Swearingen, at the date of the release, was not the holder of the bill, he had no right to it, it was not matured, but was in the hands of an indorsee for value. Let üs.inquire what effect this release could have ■ upon the bill, admitting ■ that ■ its terms'- were intended to embrace i't. The answer is -plairi. The bill in Wolcott’s hands could not be affected by any discharge of-Swearingen.- He could not re-' .lease the rights of Wolcott.• This being so, the law will'Hot raise -the presumption .that he intended, or that Fprse- expected ■ the .release would, operate, a discharge. We-must look,’then, .to the'words contained.in the reléase. The terms, “action or 'actions-,’’will not embrace-the'bill-.; nor,-will, “'cause or causes . of action,” for-the.reason thátthere was, by reason of the bill, neither'.action ór'cause-of,action-then subsisting" against Forse,- and in’favor of Swearingen.-... The same. may. be said of “ claim' : or demand.” 'As -used, those' terms.comprehended only such ■weye ...then, .present, subsisting claims or demands, held, by.'the . i-eléásbr against'thevrtífeuseé... The-'in.strúctioris, then', effected .-.'what'--was the-' actual- intention: Of;.-the" parties, -as. shown-by'•the evidence, and,'wmV-con'sistent'w'ith'.;'the forcé ahd effect of the .language offthe release, construing.the words -according to the . common. acceptation! of their' meaning. ' But we must look to ' decided pases, in order to determiné whether we'have given to' .them all the force they-will bear,-in a legal sénse. The -co'uri- . sel for the plaintiff in error; submits,, that we have not. • order that our opinion may-be as satisfactory, as can be -expectedj-.T will notice, briefly,-the several'.positions taken, authorities referred to; ■ ■■

The.first' claim is,, that,.if a holder of a bill discharge's the acceptor or even’gives time for a day,' (on a-valuable consi.deration,). he thereby discharges all -intermediate parties on the bill in bis hands,-unless it is-donó with their consent. We unanimously. assent to-this proposition, and -need not recur to authorities'upon the point.' .Yet, it moveth vei-y little towards estabfishing the position, that the court below erred; .because Swearingen was not the “ holder of the billit was not “-in his hands ” at the delivery of the' release,' and was not discharged by it. ' , - <

Again — it is contended that Swearingen holds the bill, as of his original title, precisely as if the bill had never been out of his possession, and, otherwise, that he has no claim. -We think this is not precisely accurate, and, therefore, deny the position, and assert that the authorities sustain us. The cases which are relied upon by plaintiff in error are, first, that of Scott v. Lifford. It merely decides, that a release by the drawer, of the acceptor, by words general, retrospective and prospective in their terms, is a discharge of the acceptor, and made him a competent witness for him, and that he would have no new cause of action after taking up the bill. The release in Scott v. Lifford, was, of all actions and causes of action which he then had or might thereafter have, by reason of any thing or matter whatsoever, from the beginning of the world to the date of the release. That, most certainly, was sufficient to embrace the acceptance, and the supposed fund upon which it was drawn. , They were past matters, which must be relied on after redeeming the bill. In Coe v. Hutton, the terms of the release were equally comprehensive, and were, therefore, held to-embrace, not only present and subsisting causes of action, but any future actions growing out of any past and prior act, matter or thing. Cuyler v. Cuyler, 2 Johns. Rep. 187, is an authority, so far as applicable, which would sustain the right of Swearingen to recover on the common counts upon the implied contract, (p. 188,) but, for want of which common counts, it would seem that action was not sustained.

Judgment Affirmed.  