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. (a)

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, 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, time before satisfaction sue all or any of the

he may at any rest. (b)

[(a) In a case in Massachusetts, where separate actions had been brought against the maker and endorser of a note; and judgment obtained against the endorser, which was afterwards satisfied, it was held that the action against the maker could not be maintained any longer, and judgment was given for the defendant for costs. Gilmore v. Carr, 2 Mass. R. 171. But see the remarks of Sewall J. upon this case in Porter v. Ingraham, 10 Mass. R. 88; and 1 Dane's Dig. 415.

See also Tarin v. Morris, 2 Dallas, 115.

The holder of a note in New York brought two actions, one against the maker, the other against the endorser, at the same term. It was held that the plaintiff was entitled to the costs of both suits. Per Curiam. "The statute allowing a recovery of costs in one suit only, when several suits are brought upon the same instrument, does not apply to this case; but to cases in which separate suits are brought upon the same note or bond where one suit would have served." Austin v. Bemiss, & Johns. R. 275.]

(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 endorser, perhaps more than one judgment is against all, but there can be but one satisfaction."

(11) Windham v. Withers, Str. 515. The plaintiff having obtained judgments against the drawer and endorser 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.

[In a suit against the bail of an endorser of a note, where a judgment against the maker had been paid, after judgment recovered against the endorser; judgment was given pro forma for the penalty of the recognizance, but the plaintiff was only entitled to levy for the costs of the original suit against the principal, and the costs of this suit. Wattles v. Laird, 9 Johns. R. 327.]

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 or note, extinguishes the holder's claim upon the bill or note, as against the party giving that security (12): it does not satisfy it. (c)

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

[(b) Mere delay by the holder to sue the maker of a note, does not affect the liability of an endorser. Powell v. Waters, 17 Johns. R. 176. In an action against the endorser of a note, it was proved that after the note became due, he requested the holder to sue the maker, which was not done; that the amount might then have been collected of the maker, who afterwards became insolvent. The court appeared to think that the endorser was not discharged by this neglect; and said, “Though in the nature of a surety, he is answerable upon an independent contract, and it is his duty to take up the bill when dishonored." Trimble v. Thorne, 16 Johns. R. 152.

So the mere delay of the second endorser for a length of time to take up a note, does not affect his right of action against the first endorser. Stafford v. Yates, 18 Johns. R. 327.]

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

[(c) Taking a mortgage from the maker of a note as collateral security, does not discharge an endorser. Ligget v. The Bank of Pennsylvania, 7 Serg. & Raw. 218.

Where the holder of a dishonored bill received security from the drawer, and afterwards gave it up, it was held that the endorser was not thereby discharged.

The holder of a bill protested for non-acceptance, received security from the drawer; but he afterwards gave up the security on learning that a large part, and probably the whole, of the money would be paid by the drawee. The greater part of the money was paid at maturity. In an action against an endorser for the remainder, the Court said, "That as the holder had not given time to the drawer, but had only taken further security, the endorser was not discharged: that it was no more than if the holder had commenced an action, and attached the goods of a party to a bill or note, in which case another party would not be discharged, even though the creditor should discontinue that suit, or release the attachment." Hurd v. Little, 12 Mass. R. 502.]

[(d) If an action against the maker of a note be brought in the name of one only of two persons jointly interested in the note; they are not thereby estopped from maintaining a joint action against a guarantor or endorser. Cobb v. Little, 2 Greenleaf, 261.

A judgment against one of two joint makers of a note, is no bar to a joint action against both.

In a suit against Mandeville and Jamesson upon a note declared on as having been made by them trading under the name of Jamesson,

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

Obtaining (14) a judgment is no satisfaction, even as to the parties subsequent to him against whom the judgment is obtained.

And (15) the actual taking of a man in execution, and discharging him upon a letter of licence, is no satisfaction as to any of the antecedent parties. (a)

Nor (16) is it a satisfaction, that one of the parties has

Mandeville pleaded in bar a judgment against Jamesson upon this note in favor of the plaintiff. On demurrer the plea was held bad. Sheehy v. Mandeville, 6 Cranch, 253.]

(13) R. Norris v. Aylett, 2 Campb. 329.

(14) Claxton v. Swift, 2 Show. 441. 494. Lutw. 882. To an action against the endorser of a bill, the defendant pleaded that the plaintiff had recoverad 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.

(15) Hayling v. Mulhall, Blackst. 1235. A bill was endorsed by Sheridan to Boon, and by him to the plaintiff: he sued Boon, and took him in execution, but discharged him upon a letter of license; he then sued Sheridan, for whoin the defendant became bail; and upon an action against the defendant, he contended that the debt was satisfied by the imprisonment of Boon: but the court was clear it was not, and Mulhall was obliged to pay the money. Vide post.

[(a) Committing the maker of a note on execution is no satisfaction of the note, and no bar to an action against an endorser. And where the gaoler without authority released from confinement the maker of a note who had been committed, and received the amount of the judgment from a third person, and then tendered it to the assignee of the judgment, who refused to receive it, it was held that an action might still be maintained against an endorser. Porter v. Ingraham, 10. Mass. R. 83.

In an action by the endorsee of a note against an endorser, it appeared that an officer having an execution obtained in a suit against the maker, took personal property of less value than the debt, but did not sell it, and afterwards relinguished the property to the debtor, and took his body; it was held that the endorser was still liable to the full amount of the note, without deducting the value of the property taken on the execution. Sheldon v. Ackley, 4 Day, 458.]

(16) M'Donald v. Bovington, 4 Term Rep. 825. A bill drawn by M'Donald on Bovington, was endorsed to Thompson, who charged Bovington in execution upon it; Bovington was discharged as an insolvent, and then Thompson sued M'Donald and recovered. M'Donald paid the bill, sued Bovington, and charged him in execution; and on a rule nisi to discharge him, and cause shewn, it was urged that Bovington had satisfied the bill by being charged in execution at the suit of Thompson. Sed per Lord Kenyon, nothing can be clearer than that he has not; it was a mere formal satisfaction as to Thompson, not like actual pay

been charged in execution on the bill or note and discharged as an insolvent, unless as to the party at whose suit he was so charged.

[A discharge of one of two joint makers of a note, under an insolvent law, will not operate as a discharge of the other. (a)

Proving a bill or note under a commission of bankruptcy against one of the parties to it, does not discharge any of the other parties. (b)]

If a customer deposit with his banker bills or notes of a third person on account, and they are suffered to remain with the banker after they are due, it will be no satisfaction of them, that at the time they became due, and at subsequent periods, the balance between the banker and his customer was in favor of the customer. (17)

And if the balance is afterwards against the customer, the banker may sue the third person on such bills or notes. (17)

If a bill or note is mislaid, and an agent for one of the parties tenders payment, on condition that the bill or note is delivered up, such tender is no satisfaction of the demand;

ment; and when M'Donald was obliged to pay the bill, a new cause of action arose against the defendant by the payment, without regard to what passed in the former action; and per Buller J. the consequence would be, that because the drawer was obliged to pay the holder, the acceptor would be discharged without paying either. Rule discharged. [(a) Tooker v, Bennet, 3 Cain. R. 3.]

[(b) Kenworthy v. Hopkins, 1 Johns. Cas. 107.]

(17) Attwood v. Crowdie, 1 Stark. 483. Defendants lent their acceptances for the accommodation of Mattingley and Co., to two bills at three and four months after date, payable to Mattingley and Co., or order; Mattingley and Co. having been pressed by their bankers for security, sent them these and other bills on account: at the time these bills became due, and at several periods afterwards, the balance between Mattingley and Co. and the bankers was in favor of Mattingley and Co; but Mattingley and Co. failed, and the balance then was the other way: the barkers sued defendants upon these acceptances; defendants insisted that as the balances were against the bankers when these bills became due, and afterwards, these bills must be considered as satisfied, or at least that plaintiffs must stand as if the bills had been endorsed to them after they became due: but Lord Ellenborough held, that as the bills were sent on account, which must have meant the floating account, though there were periods at which the plaintiffs had no claim upon them, and they might have been demanded back, yet, as they were suffered to remain, the plaintiffs' claim reverted when by fresh advances the balance turned in their favor, and plaintiffs had a verdict.

and if the agent fail with the money in his hands before the bill or note is found, it will be no answer to an action upon the bill or note against the principal. (18)

But payment of interest shall cease from the time of such tender. (18) (a)

(19) Discharging, or (20) giving time to any of the par

(18) Dent v. Dunn, 3 Campb. 296. An executor deposited money with an agent to pay notes of the testator: plaintiff had some of the notes, but could not find them: the agent tendered him the money if he would give up the notes, but they could not be found, and the agent failed with the money in his hands: plaintiff afterwards found the notes, and brought this action. It was urged for defendant, that plaintiff ought to bear the loss, for had he not mislaid the notes, they would have been paid. Sed per Lord Ellenborough, here was only a tender, which could not extinguish the debt; plaintiff did nothing to make the stakeholder his agent; he continued defendant's agent: verdict for plaintiff, but interest to the time of the tender only.

[(a) The payee of a dishonored bill, to whom it had been remitted by the drawer in payment of a debt, returned the first of the set to the drawer, requesting credit for the amount and a remittance. It was held that an action could not after this be maintained against the drawer upon the second of the set by an agent of the payee to whom he had endorsed it; and that the redelivering the bill to the drawer and desiring a remittance, must operate as a legal extinguishment of the bill. Ingraham v. Gibbs, 2 Dall. 134.]

(19) Ex parte Smith, 3 Bro. C. C. 1. Lewis and Potter endorsed certain bills and notes to Esdaile, and became bankrupt. Esdaile proved the amount of the bills and notes under their commission, and afterwards received a composition from the acceptors of the bills, and the makers of the notes, and gave them a full discharge, without the knowledge of the assignees of Lewis and Potter. On petition by the assignees to have the debt in respect of the bills and notes expunged, the chancellor held that, by discharging the acceptors and makers,. without the consent of the endorser, the latter was discharged also. To the same effect is the case of ex parte Wilson, 11 Ves. 410. See also Smith v. Knox, 3 Esp. N. P. C. 46.

[See also M'Fadden v. Parker, 4 Dallas, 275.]

(20) English v. Darley, 2 Bos. and Pull. 61. The holder of a bill, sued the endorser and acceptor, and took out execution against the acceptor, but received 1007. from him, and took his bond and warrant of attorney for payment of the remainder by instalments, with interest and costs, excepting only a nominal sum to enable him to support actions against the other parties: he then brought on to trial this action against the endorser. Lord Eldon thought that the bargain to give indulgence to the acceptor was a bar, and nonsuited the plaintiff; and on motion for a new trial, the court was clear that the nonsuit was right; because giving time to the acceptor was a pledge that he should have time from all the other parties, and the holder had no right to give such pledge and yet hold the other parties liable.

Gould v. Robson, 8 East. Rep. 576. The holder of a bill, upon its becoming due, received part payment from the acceptor, and took a bill from him at a future short date for the remainder, and agreed to