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So the bail of any of the parties who are sued, or (3) any persons who pay the bill or note on account of any of the parties, become, on payment, holders; and they hold as upon a transfer from the person for whom they made the payment, not (4) as upon a transfer from the person they have paid.

And they stand, with respect to other parties to the bill or note, in the situation of the party for whom they made the payment, and consequently unless he could have sued upon the bill or note, they (5) cannot.

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 on the record. And see Louviere v. Laubray, ante, p. 262. note (1)

(3) Mertens v. Winnington, Espinasse, 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.

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(4) Hall v. Pitfield, B. R. H. 17 Geo. 2. The indorsee of a note sued the maker, and on payment by his bail permitted them to sue the indorser in his (the indorsee's) name, but the court held that the payment by the bail discharged the indorser, and that the action could not be maintained.

(5) Ex parte Lambert, 13 Ves. 179. Adams and Co. drew

An action (6) may be brought for non-acceptance before the expiration of the time limited by a bill for its payment.

And such action may be brought against an (7) indorser, as well as against the drawer.

two bills on Lane and Co., which the latter accepted. Lambert took up both these bills for the honour of the drawers. A commission of bankruptcy afterwards issued against the acceptors, and the drawers also failed: Lambert received a dividend upon the bills from the estate of the drawers, and claimed the balance from the estate of the acceptors. But it being proved that the drawers had no effects in the hands of the acceptors, and that the acceptances were for the accommodation of the drawers, the claim was rejected; and upon petition, the Lord Chancellor said that Lambert could not make a title stronger than that of the drawers, nor oust the assignees of the defence which they would have had against them, Petition dismissed,

(6) Bright v. Purrier, Bull. Nisi Prius, 269. A Foreign bill payable 120 days after sight was presented for acceptance, but acceptance being refused, the holder brought an action immediately against the drawer; the defendant objected that he was not liable till the expiration of the 120 days, and offered to call witnesses to prove that such was the custom of merchants; but Lord Mansfield said the law was clearly otherwise, and refused to hear the evidence; so the plaintiff recovered.

Milford v. Mayor, Dougl. 55. The defendant drew a bill of exchange, which the drawee refused to accept, upon which the plaintiff arrested him before the bill became due; these facts appearing upon the affidavit to hold to bail, a rule was obtained to shew cause why the defendant should not be discharged; but upon shewing cause, Buller J. said, it is settled that if a bill is not accepted, an action will lie immediately against the drawer, because his undertaking that the drawee shall give him credit is not performed; there have been many actions of this sort ;" and Willes and Ashhurst Js. concurring, the rule was discharged.

(7) Ballingalls v. Gloster, 3 East. Rep. 481. John Gloster

All the antecedent parties are liable to the holder on account of a non-acceptance or nonpayment; and if the bill or note was transferred to him for a precedent consideration by delivery, the person who delivered it is also liable to be sued for such consideration.

If the holder sues all the persons liable at the same time, it was at one time (8) supposed that the court or a judge would not stay proceedings in any one action but upon payment of the money recoverable in that, and the costs in such of the rest in which judgment had not been obtained; but it is

drew a bill on Jackson, payable to Anthony Gloster's order, and the latter indorsed it to the plaintiffs. Jackson refused acceptance, on which the plaintiffs immediately sued Anthony Gloster, without waiting until the bill, which was drawn at 90 days' sight, would have been due. The plaintiffs had a verdict, with liberty to the defendant to move for a nonsuit. On rule nisi accordingly, it was urged that an indorser stood in a situation different from that of a drawer; and that although a drawer might be sued immediately on non-acceptance, an indorser could not until the expiration of the time limited for the payment of the bill; but the court was clear that the case of an indorser was not distinguishable from that of a drawer, and that every indorser was a new drawer. Rule discharged.

(8) Golding v. Grace, Blackst. 749. The indorser of a bill obtained a rule nisi to stay proceedings on payment of the debt and the costs of the writ; the plaintiff insisted that he was entitled to be paid for drawing declarations against the defendant and the drawer; and it was agreed, that if any was to be paid for, the plaintiff was entitled to be paid for both; but the court held that the application to pay debt and costs was made so early, that the plaintiff was only entitled to the costs of the writ,

now settled that in the (9) case of a regular bill, where the acceptor is the proper person to provide for payment, he is the only person against whom the plaintiff is entitled to the costs of all the actions, and that each of the other parties is entitled to a stay of proceedings upon paying the debt and the costs in the action against him.

The maker of a note stands in this respect in the condition of the acceptor of a bill.

And where it appears that some of the actions are friendly and collusive, not to obtain payment but to increase costs, it is probable the costs of those actions would not be included.

Though the holder may recover judgments in all the actions, he (10) can only once recover the sum payable by the bill or note, and the costs; and if he rejects a tender of such sum and costs,

(9) Smith v. Woodcock, Same v. Dudley, 4 Term Rep. 691. The holder of a bill brought actions against the acceptor, the drawer, and two indorsers; the drawer and one of the indorsers obtained a rule nisi to stay proceedings against them on payment of the bill and costs of the actions against them: the plaintiff insisted that the costs of the other actions should be also paid: sed per cur. "that is only necessary where the application comes from the acceptor, who is the original defaulter, and against whom all the costs occasioned by his default may be recovered." Rule absolute.

(10) Ex parte Wildman, 2 Vez. 115. per Lord Hardwicke, "In cases of bills of exchange or promissory notes, where there is a drawer and indorser, perhaps more than one judgment is against all, but there can be but one satisfaction,

the (11) court will make an order to restrain him from taking out execution.

If the holder at first sue some only of the persons liable, he may at any time before satisfaction sue all or any of the rest.

And the difference between extinguishment and satisfaction is to be remembered; the holder's claim upon a bill or note may be extinguished as to some parties, and remain entire as to others; if his claim is satisfied as to any, it is satisfied as to all.

Taking security of a higher description, as a bond or judgment, for the money due upon a bill of note, extinguishes the holder's claim upon the bill or note, as against the party giving that security (12) it does not satisfy it.

So obtaining judgment on a bill or note is an extinguishment as between the parties, not a satisfaction.

But taking a warrant of attorney to enter up judgment, is not, unless judgment is actually entered up, even an extinguishment. (13)

(11) Windham v. Withers, Str. 515. The plaintiff having obtained judgments 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 judg


(12) Bab. Abr. tit. Extinguishment, D. vol. iii. p. 106.

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