Case v. Hawkins

53 Miss. 702 | Miss. | 1876

Campbell, J.,

delivered the opinion of the court.

The acceptor of the bill of exchange was the party primarily liable for its payment, and while the holder had the right to look to all the parties to the bill as equally liable to him, the drawer and indorser (Hawkins) was, as between himself and the acceptors, a mere surety; and while it is true that a discharge of the principal by the act of the law from the claim of the creditor will not operate to discharge the surety, a release of the principal by the act of the creditor will discharge the surety. The bill of exchange was merged in the judgment obtained upon it in the Fifth District Court, as between the parties to that judgment, and the discharge of the judgment by the entry of a remittitur by counsel for the plaintiff, under his authorization, discharged the acceptor (Aby) from all liability on the bill of exchange, and that discharged the drawer and indorser.

The dismissal or abandonment (equivalent terms under the facts of this case) of his appeal by Aby, and payment of costs, were a sufficient consideration for the agreement of the plaintiff to discharge Aby. Payment of costs and abandonment of his appeal constituted accord and satisfaction; and, if a remittitur had not been entered upon the judgment, Aby would have been discharged. A remittitur was formally entered by the attorney for the plaintiff, by authority from the president of the bank, who had the power to make the contract with Aby. Morse on Banks and Banking, 129. And the testimony of the contract, by authority of the president of the bank, for the discharge of Aby from the judgment, and the consummation of that contract by the entry of the remittitur, was competent, and the motion to suppress it was properly overruled.

Judgment affirmed.