wards enters into any new agreement with the drawer for delay, in any manner changing the *nature of the original contract, or af- [*557 fecting the rights of the indorser, or to the prejudice of the latter, it will discharge him. But, in order to produce such a result, the agreement must be one binding in law upon the parties, and have a suflicient 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. In the present case, the jury have found, that there was no consideration for the promise to delay a suit, and, consequently, the plaintiffs

this the plaintiff agreed, and told the witness | the dishonor of the bill, yet, if the holder afterhe was going to Louisville, Kentucky, and would return by Nashville about the expiration of that time, and would receive said payment. Since said time the witness has never seen said plaintiff." The witness further testified, that the defendant was an accommodation indorser for him on the bill; that the plaintiff told him that the bill would be left with a Mr. Washing ton at Nashville; that he expected he would himself be at that place at the time agreed on, but that, if he did not come, he would give the instructions to Mr. Washington, by letter, what to do if the witness did not pay at the expiration of the time agreed on. It did not appear that any consideration was paid or stip-were at liberty immediately to have enforced ulated for this delay; and no suit was com- their remedies against all the parties. It was menced until after this period had elapsed. correctly said by Lord Eldon, in English v. The district judge instructed the jury, that if Darley (2 Bos. & Pull., 61), that "as long as they believed the conversation above stated the holder is passive, all his remedies remain;" amounted to no more than an agreement that and, we add, that he is not bound to active dila suit should not be brought for four or five igence. But if the holder enters into a valweeks, and that no premium or consideration id contract for delay, he thereby suspends was given or paid, or to be paid by Fletcher, his own remedy on the bill for the stipulated 556*] the indorsers were not discharged,*that period; and if the indorser were to pay the an agreement for giving day must be an obli-bill, he could only be subrogated to the rights gatory contract for a consideration which ties of the holder, and the drawer could or might up the hands of the creditor, and disables him have the same equities against him as against from suing, thereby affecting the interests and the holder himself. If, therefore, such a conrights of the indorser; that the indorser has a tract be entered into without his assent, it is to right to require and demand of the creditor to his prejudice, and discharges him. bring a suit against the drawer, and if he has disabled himself from bringing a suit by a con- | tract for a consideration, he has thereby released the indorser; and that, if the jury were satisfied from the testimony, that time was given for a valuable consideration paid, or to be paid, or that a new security was taken by the holder, that the indorser was discharged and absolved from all the obligations of the indorsement. Under this instruction, the jury found a ver-ceived part of the money on account from the dict for the plaintiffs, upon which there was judgment given in their favor. A bill of exceptions was taken to the charge of the court; and the present writ of error is brought for the purpose of ascertaining its legal correct

ness.

It is unnecessary to give any opinion upon that part of the charge which respects the right of an indorser to require the holder to commence a suit against the drawer. In general, the indorser, by paying the bill, has a complete power to re-instate himself in the possession and ownership of the bill, and thus to entitle him. self to a personal remedy on the instrument against all antecedent parties. The same reason, therefore, does not exist, as may in common cases of suretyship, to compel the creditor to active diligence by suit against the principal. | Without expressing any opinion on this point, it is sufficient to say, that the error, if any, was favorable to the defendant, and, therefore, it can form no subject of complaint on his part. The case, then, resolves itself into this question, whether a mere agreement with the draw ers for delay, without any consideration for it, and without any communication with, or assent of, the indorser, is a discharge of the latter, after he has been fixed in his responsibility, by the refusal of the drawee, and due notice to himself. And we are all of opinion that it does not. We admit the doctrine, that although the indorser has received due notice of

The cases proceed upon the distinction here pointed out, and conclusively settle the present question. In Natwyn v. St. Quintin (1 Bos. & Pull., 652), where the action was by indorsees against the drawer of a bill, it appeared, that after the bill had become due, and been protested for non- payment, though no notice had been given to the drawer, he having no effects in the hands of the acceptor, the plaintiffs re

indorser; and to an application from the ac-
ceptor, stating that it was probable he should
be able to pay at a future period, they returned
for answer, that they would not press him.
The court held it no discharge; and Lord Chief
Justice Eyre, in delivering the opinion of the
court, said that if this forbearance to sue the
acceptor had taken place before noticing and
protesting for non-payment, so that the bill
had not been demanded when due, it was clear
the drawer would have been discharged, for it
would be giving a new credit to the acceptor.
But that, after protest for non-payment, and
*notice to the drawer, or an equivalent [*558
to notice, a right to sue the drawer had attach-
ed, and the holder was not bound to sue the
acceptor. He might forbear to sue him. The
same doctrine was held in Arundel Bank v.
Goble, reported in a note to Chitty on Bills.
(Chitty, 379, Note c, edit. 1821.) There the
acceptor applied for time, and the holders as-
sented to it, but said they should expect inter-
est. It was contended that this was a discharge
of the drawer; but the court held otherwise,
because the agreement of the plaintiffs to wait
was without consideration, and the acceptor
might, notwithstanding the agreement, have
been sued the next instant; and that the under-
standing that interest should be paid by the
acceptor, made no difference. So, in Badnall
v. Sumuel (3 Price's Exch. Rep., 521), in a suit
by the holder against a prior indorser of a bill

of exchange, it was held, that a treaty for delay between the holder and acceptor, upon terms which were not finally accepted, did not discharge the defendant, although an actual delay had taken place during the negotiation, because there was no binding contract which precluded the plaintiffs from suing the acceptor at any time.

This was an action of assumpsit brought in the court below by the United States, against the personal representative of A. Barker, deceased, the indorser of several bills of exchange, drawn in the year 1814, by J. Barker, in New York, on different houses of trade in England. Among the bills, two were protested for nonacceptance, and two for non-acceptance and nonpayment. It appeared in evidence at the trial, that the agent of the United States Treasury, in New York, where the bills were drawn, and where the drawer and indorsers resided, received a letter from the Secretary of the Treasury, dated Washington, December 7th, *1814, requesting him to notify the [*560 drawer and indorsers of the non-acceptance of the first set of bills, and that notice was accordingly given to them on the 12th of December. The judgment of the court below is, therefore, Washington on the 8th of the same month, arIt was further proved that the mail which left affirmed with costs.

Upon authority, therefore, we are of opinion that this writ of error cannot be sustained, and that the judgment below was right. Upon principle, we should entertain the same opinion, as we think the whole reasoning upon which the delay of the holder to enforce his rights against the drawer is held to discharge the indorser after notice, is founded upon the notion that the stipulation for delay suspends the present rights and remedies of the holder.

rived at New York at 35 minutes past 10 o'clock, A. M., on the 10th. It was also proved that the said agent received a letter from the Secretary of the Treasury, dated at Washington, May 8th, 1815, directing him to give notice of the non-payment of the second set of bills of exchange to the drawer and indorsers, and that they were notified on the 12th of the same month. It was further proved that the mail which left Washington, containing letters of the 8th of May, reached New York early in the morning of the 11th. But no notice of the nonacceptance of this second set of bills was

PRISCILLA BARKER, Administratrix of proved.

ABRAHAM BARKER, deceased.

Wherever the government of the United States, through its lawfully authorized agents, becomes the holder of a bill of exchange, it is bound to use the same diligence, in order to charge the indorser, as in a transaction between private individuals. Where the United States were the holders of certain bills of exchange, and their agent in New York was directed, by a letter from the Secretary of the Treasury, dated Washington, December 7th, 1814, to give notice of non-acceptance to the drawer and indorsers, residing in New York, and notice was given to the indorser on the 12th of the same month, the mail which left the 8th having arrived at New York at 35 minutes past 10 o'clock, A. M., on the 10th: Held, that the indorser was discharged by the negligence of the holders.

So, also, where the United States were the holders of other bills, and their agent in New York was directed, by a letter from the Secretary of the Treasury, dated Washington, May 8th, 1815, to give notice of non-payment to the drawer and indorsers residing in New York, and notice was given to the

indorser on the 12th of the same month, the mail which left Washington on the 8th having reached New York early on the morning of the 11th. Held, that the indorser was discharged by the negligence of the holders.

The learned judges in the court below instructed the jury that the holders of the bill The letter of the had not used due diligence. 7th of December, 1814, must be considered as having been written on that day, and ought to have been put into the post-office to come by the mail of the 8th; and, if so, it would have reached New York on the morning of the 10th. That the letter of the 8th of May, 1815, should have been put into the post-office to come by the mail of the 9th, and would have reached New York the morning of the 11th. The earliest notice alleged was on the 12th of May and December, respectively; and it seemed clear, either that the letters were not put into the post-office at Washington in due time, or that the agent in New York was guilty of negligence in giving notice to the parties, in either of which cases they were discharged.

A verdict and judgment was rendered upon this instruction in the court below, on which the cause was brought, by writ of error, to this

court.

The cause was submitted without argument, RROR to the Circuit Court for the eastern by the Attorney-General for the United States, district of Pennsylvania. and by Mr. Webster for the defendant.

ERR

NOTE.-When the United States, by their authorized officer, become a party to negotiable paper, they have all the rights and incur all the responsibility of individuals who are parties to such instruments. Beers v. United States, Dev. 28; 4 Op. Att.Gen. 90; 8 Op. Att.-Gen. 1.

Consequently, where a draft is drawn by it, the holder is bound to the same diligence in presenting the same. and of giving notice of non-acceptance or non-payment, as in case of a draft drawn by an individual. 8 Opp. Att.-Gen. 1.

The United States, held, under the circumstances, parties to a bill of exchange, both as drawers and drawees, where the bill was drawn by a purser in

the navy, in pursuance of instructions from the navy department, upon the Secretary of the Navy, and liable without protest or notice. Beers v. Unit ed States, Dev. 27.

That the government should pay the same damages upon a bill of exchange drawn by it, and protested, as a private person would be liable to pay. See Bank of U. S. v. U. S., 2 How. 711: Thorndyke v. U. S., 2 Mas. 1.

The United States are a body corporate, having capacity to contract. The government of the United States has power, as incident to its sovereignty, to make a contract. Stearns v. U. S., 2 Paine, 300; U. S. v. Lane, 3 McLean, 365.

THE JUDGES OF THE CIRCUIT COURT OF which had been mislaid, was found, and, on

We do not think this a valid objection. The suit in chancery does not draw into question the judgment and proceedings at law, or claim a right to revise them. It sets up an equity independent of the judgment, which admits

[LIMITATION.]

THOMPSON,

v.

non of PETER, deceased.

An acknowedgment of the debt by the personal representatives of the original debtor, deceased, will not take the case out of the statute of limitations.

ERR

the validity of that judgment, but suggests PETER & JOHNS, Administrators de bonus 564*] reasons why the party who has obtained it ought not to avail himself of it. It proposes to try a question entirely new, which has not been, and could not be, litigated at law. It may be brought before the commencement of a suit at law, pending such suit, or after its decision by the highest law tribunal. The bill is an original bill, and may be filed although an injunction should not be awarded. The injunction arrests proceedings at law, and may be dissolved or continued without making any final decree in the case. The condition of the suit at law may be a reason for imposing terms on the party who applies for an injunction, but can be no reason for refusing it. The subpoena and injunction act on the person to whom they are directed, not on the record, and it can be of no consequence where the record is.

2. The second objection to the pendency of the injunction has more weight. It was awarded in December 1825, by the district judge, and no order appears to have been made for its continuance at the succeeding term. The act which authorizes the district judges to grant writs of injunction, provides, that the same shall not, unless so ordered by the Circuit Court, continue longer than to the Circuit Court next ensuing.' An order for its continuance, therefore, ought to have been made; and, after the close of the term without such order, an execution might have been sued out on the judgment without any contempt of the

court.

But if, in point of law, the injunction ceased to exist, the court could re-instate it at will. The judges acted obviously on the opinion, that the injunction still continued, and ought to continue. Two successive motions to dissolve it were overruled. The same view of the case which induced the court thus to continue the injunction, must have induced a re-instatement of it, had it been supposed to be discontinued by the omission to make an order in it at the term to which the subpoena was returnable. If, upon the ground of this omission, the mandamus should be awarded, it might be rendered useless by granting a new injunction. It ought to be granted, if the case, as it now appears, shows that the plaintiff in equity is entitled to relief. We must suppose that, in the opinion of the 565*] court, he is so entitled, or the injunction would have been dissolved on motion. The continuance of the injunction is, in substance, equivalent to a renewal of it.

Under these circumstances, some difference of opinion exists on the motion for a mandamus. Some of the judges think that it ought to be awarded; others are of opinion that as the injunction is still continued by the court, and as the judges who have a right to give it force have returned that it is in force, it ought not to be awarded. The motion is overruled.

Rule discharged.

Cited-1 Woods, 192.

RROR to the Circuit Court for the District of Columbia. This was an action of assumpsit brought in September, 1822, by the plaintiff against the defendants, for goods sold, &c., to their intestate. At the trial in the court below, the plaintiff gave in evidence, that in the life-time of the intestate, James Peter, who died in the year 1808, he admitted the payment, at his request and for his use, by the plaintiff, of the $800 charged in the account produced; that after the death of said Peter, and after his brother D. Peter had obtained letters of administration on his estate, an account, of which the one now in suit is a copy, was drawn off, passed the Orphans' Court, and presented to said D. Peter, as said administrator, for payment; to which he answered, there were no funds in hand to pay the debts of the intestate. The said account, with the certificate of allowance by the Orphans' *Court [*566 thereon, and so presented as aforesaid, was left in the hands of said D. Peter after his death, which was in the year 1812; and after the defendants had qualified as administrators de bonus non, some time in the spring or summer of the year 1820, an application was made on behalf of the plaintiff to the defendant, G. Peter, for a settlement of the said account; to which he answered, that he knew very little of the business of the estate, which was principally attended to by the other defendant, Johns, but there were no funds in hand to pay the debts of the estate; and in a subsequent conversation, the said G. Peter, in answer to another application for payment of the said account, said, that until a recovery could be had from one Magruder, to whom lands of the intestate had been sold, for the purchase money of which a suit was pending, the administrators would have no funds to pay James Peter's debts; application for a settlement was then made in behalf of the plaintiff to said Johns, to whom the other defendant had referred as the acting administrator, and the said Johns was requested to see if the said account, before delivered to said David Peter as aforesaid, was not among the files of his papers, and to return it for the purpose of bringing suit on it; to which the said Johns replied that he had seen, or believed the account was on file; would look for and return it; and further said, there were no funds in hand to pay the debts of the estate; and on a second applica tion to the said Johns for the said account, he said he had looked for it and could not find it.

A verdict was taken subject to the opinion of the court, whether the above was sufficient evidence, to be left to the jury, of a subsequent acknowledgment of the debt, to take the case out of the statute of limitations. A judgment having been rendered for the defendants, the

cause was brought by writ of error before this | naming them, and also certain lands,

An absolute bequest of certain slaves to P. H. is qualified by a subsequent limitation over, that if no words in the will which either of the testator's grandchildren, P. H., or J. D. A., should die without a lawful heir of their restrain the dying without issue to the time of bodies, that the other should heir its estate, which the death of the legatee. The remainder over converted the previous estate into an estate tail; is to take effect whenever either of the immeand there being no words in the will which re-diate legatees should die without a lawful heir strained the dying without issue to the time of the death of the legatee, the limitation over was held to be on a contingency too remote.