William B. Sorley, the payee, sued Thomas Shirley and W. A. Van Alstyne, the drawer and acceptor of the following draft, to wit:
“§7000 57. “Houston, Texas, January 6, 1865.
“ Thirty days' after sight, pay to the order of W. B. Sorley <& Co., seven thousand dollars and fifty-seven cents, in specie, value received, and charge the same to account of
“ Thomas Shirt,ey, Houston.
“To W. A. Van Alstyne, Esq.”
This draft was accepted by the drawee, Van Alstyne, but was never negotiated and put in circulation. It remained in the hands of the payee until the institution of this suit. The drawer having become bankrupt, the suit was discontinued as to him; and the acceptor dying pending the suit, his personal representative answered, alleging that her testator was only an accommodation acceptor, and, in fact, was only a surety for the drawer, which was understood and known by the payee; and that the payee extended the time of payment to the drawer after the maturity of the draft, without the knowledge or consent of the acceptor; and that, therefore, the acceptor was thereby released.
This draft, never having been negotiated and put into cireu*530lation as commercial paper, but remaining under the control of the original parties to it, is to be construed by what can be arrived at as the intention of the parties in making it, rather than by the principles of commercial law; and the relative rights of the parties must be settled and determined according to the equities developed by their action in conformity with that intention. In the form in which it stands, it is but a simple contract, which must be construed according to the intention of the parties.
It is contended in defense that the acceptance was made for the accommodation of the drawer, of which the payee had knowledge. This is, no doubt, true. But it was no valid instrument, having any binding force, until it was so accepted, and the act of the acceptor created the obligation in which he was the principal, and he was primarily bound to pay it. The court is bound to infer that this draft was made either to raise money by the drawer to pay a debt which he owed the payee, or it was for the purpose of giving the drawer e time upon Ms indebtedness to the payee to enable him to realize means from other sources to meet such liability. If the latter was the object, the extension of the time by the payee was doing nothing more than carrying out the original design of the parties. If the former, it could only be done by the payment of the draft at maturity by the acceptor, as he agreed to do by the acceptance. In such a state of facts, any agreement with the drawer to suspend coercion upon the draft, or to extend the • time of payment of it, even for a consideration, was the extension of indulgence to the acceptor, who was primarily liable upon it, and which positive liability of the acceptor must be presumed to have been the controlling motive of the payee in receiving the draft, or bill, in lieu of the indebtedness of the drawer to Mm. Such extension of time could not. therefore, create any equity in favor of the acceptor.
Although this bill, or draft, was never negotiated, from its very form, it must be treated, in construing it, as negotiable instruments are treated. In doing so, however, it does not *531come within, the purview of the statute, requiring suit to be brought to the first term of the court after maturity of the draft, or to the second term, showing cause for failure to bring it to the first. By that statute such diligence is only required on bills of exchange and promissory notes indorsed, in order to fix the liability of the drawer, or maker, and of the indorsers, not of the acceptor; because the acceptor is liable in any event to the holder of the draft. This draft being a simple contract, and not an indorsed promissory note, or bill, if the acceptor was only a surety, according to the intention and understanding- of all the parties in this accommodation transaction, then, by Art. 4783, Paschal’s Digest, the acceptor had a right to give notice to the holder to bring suit forthwith upon the maturity of the obligation ; and if the holder failed to do so, equity would then interpose and release the acceptor. But no equity could arise in favor of the acceptor unless such notice was given. The question of such suretyship might have been tested in the trial of this cause in the court below; but it could not have been permitted to delay the action and the judgment in favor of the plaintiff. However, the cause being discontinued as to the drawer, by reason of his bankruptcy, it would seem to have rendered the investigation entirely nugatory in this case. The court can not, therefore, perceive how the agreement of the holder with the drawer of the draft, even for a valuable consideration, not to press the accommodation acceptor of the drawer for immediate payment, could raise an equity in favor of the acceptor. Such is the equitable view which the court takes of the transaction. Treating it as a commercial transaction, and applying the rules of mercantile law to it alone, the best accredited doctrine of that law is strongly against the acceptor’s release from liability on such accommodation paper. Though he may be a mere surety as to the drawer, he is the principal as to the holder; and the extension of the time of payment, however it may have been brought about, is nothing more at last than an indulgence to the acceptor by the creditor.
*532In regard to the question of the revenue stamp affixed subsequently to the making of the instrument, this court knows historically, if not judicially, that the revenue offices of the "United States were not in operation in this State at the time of the making of this instrument; and as the law does not exact impossibilities, it was not invalidated as an. instrument of evidence because it was not then stamped. The subsequent affixing of the necessary stamps saved the government at least from "being defrauded of its dues.
There is error, however, in the judgment for coin. The instrument sued upon calls for dollars m specie. The judgment is variant, both from the pleadings and the proof, as well as from the law. Nor should the judgment have been given for specie, but for dollars simply, and parts of dollars, according to the finding of the jmy under the instructions of the court, so as to he payable by the judgment debtor in any legal tender established by the national authority. It must be observed that the case of Bronson v. Bodes, decided by the Supreme Court of the United States, declaring that gold contracts might be specifically enforced, was applicable alone to contracts for payment in gold coin entered into prior to the passage of the act of Congress making certain paper issues of the government legal tenders in the payment of debts. That court is the authoritative interpreter of the acts of legislation of the government; but it will not he presumed iu advance that that court will pronounce a like opinion in reference to similar contracts entered into after the enactment of the law, since such an adjudication would virtually declare the act to "be a violation of the constitution of the United States. For this error in the judgment of the District Court it is reversed. And this court, proceeding to render such judgment as ought to have been rendered, it is adjudged that the plaintiff in the action do have and recover of the defendant in the court "below the amount in dollars and parts of dollars as were found to be due by the jury in their verdict, for which the plaintiff may have execution; and that the appellant he per*533mittecl in the District Court to try and determine the question of suretyship, if desired by the party, upon the issue tendered in the answer. It is further ordered and adjudged that the appellee recover his costs in the District Court, and that appellant recover costs in this court, for which execution may issue.
Reversed and rendered