Where the holder of a bill sued the acceptor and charged him in execution, and the latter having obtained his discharge under the Lords act, the holder then sued the drawer, who after paying the bill sued the acceptor, and charged him in execution, this was held to be regular. In the case of an acceptance for the accommodation of the drawer, such acceptor, if he has been obliged to pay, may sue the drawer on his implied contract to indemnify him, but not on the bill itself, though we have seen that he may retain money in his hands as an indemnity; and a person not originally party to a bill, having paid it supra protest, may maintain an action against all, or any of the parties to it, except the person whom he paid; but the bail of the maker of a promissory note, who have paid it, cannot sue the indorsers ; and a banker who pays the acceptance of a customer, who has made it

to pay; upon this the bill was indorsed to the plaintiff, and the question was, whether he could maintain an action as indorsee; and per Parker, C. J. upon evidence that he had effects in the hands of the defendant enough to answer the bill, and consequently that the acceptance was not upon the honour of the plaintiff, the action is well brought, but if there were no effects, the action would not lie, and the plaintiff recovered.

' Macdonald v. Bovington, 4 T. R. 825, ante, 384, and Mead v. Braham, 3 M. & S. 91.

2

Young v. Hockley, 3 Wils. 346.

3 Ante, 255.

4

* Ante, 313, 4.

Mertens. Winnington, 1 Esp. Rep. 112. A bill was drawn by the defendant, and indorsed by Burton, Forbes, and Gregory. The plaintiff paid it for the honour of Burton, Forbes, and Gregory, and brought this action against the defendant as drawer; the defendant contended that a person who paid for the honour of one of the parties, could only sue that party; but Lord Kenyon said he was to be considered as an indorsee, paying full value for the bill, and he directed the jury to find for the plaintiff.

5 Hull v. Pitfield, 1 Wils. 46.-Bayl. 148.

The indorsee of a note sued the maker, and on payment by his bail, permitted them to sue the indorser in his (the indorsees) name, but the court held that the payment of the money to the plaintiff by the bail for the drawer, was the same thing as if the drawer himself had paid it, and that the note was thereby absolutely discharged and satisfied; that the indorser of a note is only a warranter thereof; that the drawer will pay it, and if he does not, that the indorser will, and that it is the same thing whether the drawer himself paid the money, or his friend, as the bail did in this case.

payable at his banking house, cannot sue thereon, as he does not stand in the situation of a party paying supra protest'.

But unless, under circumstances which must be specially stated on the record, no action can be maintained on a bill against a person who became party to it subsequently to the holder or plaintiff, for if it were otherwise, the defendant in such action might, as an indorsee deriving from the plaintiff, be entitled to recover back again, in another action against the plain tiff, the identical sum which he, the plaintiff, had previously recovered from him, which would introduce a circuity of action; and therefore where A. having declared on a promissory note against B. made by C. to A. and indorsed by him to B., and by B. again indorsed to A. and having obtained a verdict, the judgment was arrested'.

A plaintiff cannot in general maintain his action against the person from whom he received the bill, unless he gave him a valuable consideration for it'.

We have before seen, what objections may be taken in an action at the suit of a person attempting to derive an interest in a bill, by a transfer after it was due

'Holroyd v. Whitehead, 5 Taunt. 444.-1 Marsh. 128.—S Campb. 530. S. C.

2

Bishop v. Hayward, 4 T. R. 470.-Mainwaring v. Newman, 2 Bos. & Pul. 125.

Bishop. Hayward, 4 T. R. 470. The plaintiff declared upon a note payable to himself or order, indorsed by him to the defendant, and by the defendant indorsed back again to him, and obtained a verdict. A rule was granted to shew cause why the judgment should not be arrested, on the ground that according to the statement in the declaration, the plaintiff would be liable upon his indorsement to pay the defendant the sum, for which the verdict was given, and upon cause shewn, the court held the objection good, because as the plaintiff had not stated it to be otherwise, his indorsement was to be considered as a legal existing indorsement; had any circumstances existed which exempted the plaintiff from answering upon his indorsement to the defendant, they should have been disclosed upon the record, and the declaration framed specially.

3

Ante, 88 to 95.-Mitchinson v. Hewson, 7 T. R. 350.-Cowley v. Dunlop, id. 571.-Death v. Serwonters, 1 Lutw. 886.-Simmonds N. Parminter, 1 Wils. 185.-4 Bro. P. C. 704. acc.—2 Bla. Com. 446. contra; but see Mr. Christian's note.

or paid; and what laches, in the holder of a bill, will operate as a forfeiture of his right of action. If the holder of a bill make the acceptor his executor, and die, the right of action at law against all the parties is extinguished, unless the executor formerly renounces 3. Where, a note or bill made by several, is joint and several, it is advisable to proceed in separate actions, if there be any doubt in proving the joint liability of all.

Whenever the holder of a bill, &c. has a remedy against several parties to it, he may commence and procced in several actions against each of those parties at the same time; and an action commenced against one, will not preclude any other remedy against the others; but as the different persons liable on the bill are debtors to the holder in respect of the same debt, satisfaction by any one will discharge the others from liability as to the principal sum due on the bills, and if the holder reject an offer by a drawer or indorser of a bill, to pay debt and costs of the action against him, the court will make an order to restrain

3 Poth. pl. 191.-1 Rol. Abr. 922.-Woodward v. Lord Darcy, Plowd. 184.-Paramour v. Yardley, id. 542.-Wankford v. Wankford, 1 Salk. 299.-2 Bla. Com. 511, 2.-3 Bla, Com. 18.--Mainwaring v. Newman, 2 Bos. & Pul. 124, 5.

Gray v. Palmer, 1 Esp. Rep. 135, 6.

'Windham v. Withers, 1 Stra. 515.-Poth. pl. 160.—Bayl. 151.— Burgess. Merrell, 4 Taunt. 468.-Ex parte Wildman, 2 Ves. sen. 115. Lord Hardwicke. In cases of bills of exchange or promissory notes, where there is a drawer and indorser, perhaps there may be more than one judgment against all, but there can be but one satisfaction.

Windham. Withers, 1 Stra. 515. The plaintiff having obtained judgment against the drawer and indorser of a note, the principal in one and the costs in both were offered him, which he refused, and the court granted a rule to restrain him from taking out execution, and intimated that they would have punished him, had he taken out execution upon both judgments.

Claxton v, Swift, 2 Show. 441. 494.-Lutw. 882. To an action against the indorser of a bill, the defendant pleaded that the plaintiff had recovered a judgment against the drawer, and that the judgment was still in force, and upon demurrer the court of King's Bench held the plea good, but the court of Exchequer Chamber held otherwise, and the judgment was reversed.

the holder from taking out execution; though if the money be paid pending several actions against other parties to the bill, the plaintiff may, without reserving any part of the principal money, proceed in the actions for the recovery of the costs'.

It is settled, that when two persons are severally, as well as jointly, bound in a bond, and one of them be taken in execution in a separate action, the other may, nevertheless, be sued, because the taking another's person in execution, is but the mere security for the payment of a debt, and not a valuable satisfaction of it'. It was made a question in the last century, how far this doctrine was applicable to bills of exchange; but it is now settled, that a judgment, or even an execution, against the person of any one of the parties to the bill, will not discharge the others, though with respect to him it is a full satisfaction of the debt. It is also settled, that the holder's letting a subsequent indorser in execution out of prison on a letter of Icence, will not discharge a prior indorser from his liability to pay the bill; and that if an acceptor be discharged under an insolvent debtor's act, such discharge will not operate in favour of any other person. But if the holder of a bill accept a bond from the drawer, or any other party, in satisfaction of it, such act will discharge other subsequent parties"; and we have before seen, that compromising with the acceptor,

Toms v. Powell, 7 East. 536.—6 Esp. Rep. 40. S. C.-3 East. 316.-3 Campb. 331.-1 Holt, C. N. P. 6.

* Blemfield's case, 5 Co. 86.--Bayl. 151.—Clerk v. Withers, Lord Raym. 1072.-1 Salk. 322. S. C.-Claxton v. Swift, 2 Show. 494.— Foster v. Jackson, Hob. 59.-Bayl. 151, 2.

3 Ayrey v. Davenport, 2 New Rep. 474.-Claxton v. Swift, 3 Mod. 87.-2 Show. 494.-Lutw. 878. 882. S. C.-Bayl. 151, 2.

Id. ibid.-Macdonald r. Bovington, 4 T. R. 825.

5 Ante, 380, 1.-Haylin e. Mullhall, 2 Bla. Rep. 1235.-English v. Darley, 2 Bos. & Pul. 61.-Clark v. Clement, 6 T. R. 525.— Bayl. 151.

147.

Macdonald v. Bovington, 4 T. R. 825.-Nadin v. Battie, 5 East,

Ante, 302.-Claxton r. Swift, 3 Mod. 87.-English v. Darley, 2 Bos. & Pul. 61.

8 Ante, 385.

without the assent of the drawer or indorsers, will release them from their engagements. Actual payment of what is due, will, of course, discharge the parties; and though the holder of a bill may issue execution against the person of all the parties, he cannot, after levying the amount of the debt on the goods of one, issue a fieri facias to affect the goods of another',

• Windham T. Withers, 1 Stra. 515.