Frazer against Jordan
| Jurisdiction | England & Wales |
| Judgment Date | 04 July 1858 |
| Date | 04 July 1858 |
| Court | Court of the Queen's Bench |
English Reports Citation: 120 E.R. 113
IN THE COURT OF QUEEN'S BENCH AND EXCHEQUER CHAMBER
S. C. 26 L. J. Q. B. 288; 3 Jur. N. S. 1054; 5 W. R. 819. See Oriental Financial Corporation v. Overend, 1871-74, L. R. 7 Ch. 147; L. R. 7 H. L. 348; Clarke v. Birley, 1889, 41 Ch. D. 434.
frazbr against jordan. Saturday, July 4th, 1858. Action by holder of a bill of exchange against the drawer. Plea: that plaintiff, after indorsement to him by defendant, and while holder, and without defendant's consent, agreed with K. to give time to the acceptor, in consideration that K. would see the bill paid : and that plaintiff gave time accordingly : whereby plaintiff discharged defendant from payment. K. was not alleged to be a party to the bill.-Held, that the plea was had, inasmuch aa the agreement to give time, not being with the principal debtor, hut with a stranger, no party to the bill, did not discharge defendant as surety. [S. C. 26 L. J. Q. B. 288 ; 3 Jur. N. S. 1054 ; 5 W. R. 819. See Oriental Financial Cwpmatim v. Overend, 1871-74, L. R. 7 Ch. 147; L. R. 7 H. L. 348; Clarke v. Birley, 1889, 41 Ch. D. 434.] Action by the plaintiff, as indorsee, against the defendant, as drawer and indorser of a bill of exchange. Plea : that, after the indorsement of the said bill to the plaintiff, and after the bill had become due, and whilst the plaintiff was the holder, he, without the consent and against the will of the defendant, agreed with Messrs. Kerin & Co. that, in consideration that K. & Co. would bind themselves to see the said bill paid to the plaintiff, the plaintiff would give time to the acceptor of the bill, and would forbear to sue the acceptor of the said bill for the space of ten days : that K. & Co. did, in accordance with the agreement, bind themselves &c.; and plaintiff did give time &c.: and that the said agreement and its performance by the plaintiff and the said K. & Co. were without the defendant's consent and against his will: and that plaintiff thereby discharged the defendant from the payment of the said bill. [304] A case was stated by consent, the questions for the Court being: first, whether the plea was made out; and, secondly, if so, whether the plaintiff was entitled to recover. It is not necessary to set out the case, as the Court held that the plea waa proved by the facts. Atherton, for the plaintiff. First, the facts of the case, as stated, do not support the plea. (The argument upon this point is omitted.) Secondly, the plea is not good at law. It alleges that the plaintiff, by entering, without defendant's conaent, into an agreement with a third party (who waa no party to the bill) to give time to the acceptor, discharged the defendant. Now, an agreement between the holder of a bill and a stranger, to give time to the acceptor, does not discharge the other parties to the bill. To have that effect, the agreement to give time must be between the holder and some party to the bill who is prior in order to the party sued ; and the reason given by the text books why such agreement discharges the subsequent parties is, that the- holder, by giving time, auspenda his remedy, to the prejudice of those other parties. But those parties would not be prejudiced if the agreement to give time were made with a third party, a stranger. [Erie J. Is there any case in which the acceptor of the bill was the party to whom time was given 1 Wightman J. Suppose that here the agreement by the holder had been with both the acceptor and Kerin & Co. ? Would that have discharged the defendant1!] If it did, it would have discharged him only by virtue of the agreement with the...
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