Milne v. Hamilton

Per Curiam.

The payee had parted with the note, and could not control the holder’s recourse on it without his consent; but it is supposed that the holder’s approbation of the arrangement is equivalent to an engagement to abide by it. His approbation, however meant nothing. He had no right to approve or object; for as his interest was not bound up in the transaction, it was one with which he had not to do. Such of the parties as had parted with notes of the firm, covenanted to take them up at maturity; but nothing indicates an expectation of forbearance by the holders. It is not to be supposed that an endorsee would release the drawer without an equivalent security; and no one can sue on a covenant who is not a party to it. Had the payee executed the instrument on a promise by the plaintiff to forbear, the defendants might have had the benefit of it; but no such promise can be inferred from the plaintiff’s acquiescence in an arrangement to which he had not a right to object. It would, in fact, have been a relinquishment of every security but the payee’s endorsement, while the other creditors were at liberty to sue the defendants for each default. The plaintiff’s pursuit of the defendants therefore, is not in fraud of those who interposed to relieve them; and there is, consequently, nothing in it which could furnish a defence.

Judgment affirmed.

Cited Tby Counsel, 6 Wharton, 471; 6 Barr, 167.