urge the original wrong as against a party not primarily liable therefor.

We limit our holding to the single proposition that the court did not err in overruling appellant's motion to strike the allegations of appellee's

reply, and that the matters so pleaded were not immaterial or redundant. It follows that the order of

the trial court in overruling said

motion must be affirmed.

Arthur, Ch. J., and Evans and Vermilion, JJ., concur.

The term "party to the paper" as used in the title of this annotation includes not only the original parties thereto, but also indorsees of negotiable instruments and assignees or transferees of non-negotiable in

struments.

Where litigation has taken place between parties to a promissory note, the judgment therein may give rise to one or another of the following questions in a subsequent suit against another party to the note who was not a party to the prior suit: First, whether the cause of action has been merged in the judgment; second, whether such judgment may be used as evidence; and, third, whether it is conclusive of the matters litigated.

These questions are involved in the decisions reviewed herein. For convenience in reference, the cases are grouped according to the character of the party against whom or for whose benefit the former judgment was invoked.

A judgment in favor of the holder of notes indorsed in blank is a bar to a suit by any other party to the notes. Dawsey v. Kirven (1919) 203 Ala. 446, 7 A.L.R. 1658, 83 So. 338.

The doctrine of merger by judgment as applied to promissory notes refers only to such parties as are jointly liable thereon, or to cases where a judgment is rendered against both the maker and parties secondarily liable with him. Petri v. Manny (1918) 99 Wash. 601, 1 A.L.R. 1595, 170 Pac. 127.

As against maker or drawer.

A judgment recovered in an action instituted by the holder of negotiable

paper against the indorsers is not a bar to a subsequent action by the holder against the maker, who was not a party to the first action or notified of its pendency. Brooklyn City & N. R. Co. v. National Bank (1880) 102 U. S. 14, 26 L. ed. 61.

A judgment in a suit by the holder of a bill of exchange against the accepter is no bar to a suit against the drawer. Allen v. Union Bank (1840) 5 Whart. (Pa.) 420.

Since there can be but one satisfaction of a claim, recovery and satisfaction of a judgment in an action against an indorser of a promissory note is a bar to the further prosecution of a suit on the note against the maker. Gilmore v. Carr (1806) 2 Mass. 171.

A judgment recovered against the indorser is not evidence against the maker of a note. Fenn v. Dugdale (1862) 31 Mo. 580.

A judgment obtained by the holder of a promissory note against the indorsers thereon is not binding upon the maker of the note, who was not a party to the suit, in a subsequent suit brought against him by the indorsers. Pyle v. Gentry (1922) 127 Miss. 784, 90 So. 485.

But such a judgment, satisfied by the indorser, is admissible in evidence in a suit by the indorser against the maker, for the purpose of proving the recovery of the debt against him by the holder of the note. Chance v. Summerford (1858) 25 Ga. 662.

A judgment in an action by an indorsee, dismissing the suit, in which the only issue was whether or not the plaintiff therein could maintain the

suit, is not res judicata in an action subsequently brought by the payee against the maker. Wells v. Coyle (1868) 20 La. Ann. 396.

character as original promisor.

A judgment in an action brought by an indorsee against the maker of a note, upon a verdict finding that one whose name appeared on the back of the note was an original promisor instead of an indorser, estops him from denying that he was such, in an action brought by him against the payee. The court said: "Where, as here, the record of the judgment shows that the identical point has been once determined upon judicial investigation, in the absence of fraud and collusion, the fact thus established must be deemed and taken to be true as to the parties to the suit and all in privity with them. The plaintiff has had his day in court, and the jury have determined that his connection with that note is that of an original promisor. Judgment has been rendered upon that verdict, and he is estopped to deny the truth of it in any litigation with any other party to the note." Sturtevant v. Randall (1865) 53 Me. 149.

Against or in favor of comaker.

The recovery and satisfaction of a judgment against a comaker is a bar to a subsequent suit against another comaker. Farwell v. Hilliard (1825) 3 N. H. 318.

But the mere allowance of a note which was a joint and several obligation, as a claim against the estate of one of the makers who was the principal debtor, does not so merge it as to preclude a subsequent action against the other joint makers. Greathouse v. Kline (1884) 93 Ind. 598.

And an accommodation maker of a note containing a joint promise to pay cannot defeat an action against himself by a guarantor because the judgment has been taken against the comaker. Noble v. Beeman-SpauldingWoodward Co. (1913) 65 Or. 95, 46 L.R.A. (N.S.) 162, 131 Pac. 1006.

A judgment against part of the makers of a note, obtained by a transferee, is not conclusive on the other makers that the transferee was a holder in due course in a subsequent action against them for contribution. Peterson v. Nichols (1913) 71 Wash. 656, 129 Pac. 373.

A judgment in a suit against one of several joint makers of a note for one year's interest is not conclusive upon the comakers as to the plaintiff's right to recover upon the note. Davis v. Schmidt (1906) 126 Wis. 461, 110 Am. St. Rep. 938, 106 N. W. 119.

The judgment in a suit by a trustee in bankruptcy of one of the joint makers against the payee to recover a payment made thereon as a voidable preference, in which such payment was declared void, is binding upon the other comaker in an action upon the note, so as to preclude such comaker from asserting that the note has been paid. Commercial Bank v. Varnum (1914) 176 Mo. App. 78, 162 S. W. 1080.

In Spencer v. Dearth (1870) 43 Vt. 98, where it appeared that, upon the arbitration of differences between one of the makers of a note and the payee, it was found that the note had been paid, such finding was held conclusive in favor of a comaker in subsequent action of trover by the makers to recover possession of the note. The court said: "The assumption that one of the makers of a joint and several note is a stranger merely to a judgment in favor of another maker of the same note in an action upon it, where the judgment was rendered upon the defense of payment in full, is contrary to the legal effect of their relation. This assumption treats the engagement of joint and several promisors as several and independent contracts, and the promisors as liable to no common duty, and as having no common rights or interests in regard to payment of the note or defense against it when payment had been made. This is not the nature of their engagement nor the relation created by it; but each signer of a joint and several promissory note undertakes for him

self and as surety for the other signers, to pay the note according to its tenor. When one of the signers has paid the note in full, or made payment on it, such payment is, as between the makers and payee, regarded as payment made by all the makers; it constitutes a defense to the claim, common to all the promisors. If action be brought against one of them, and the defense of payment is interposed, and it prevails, and judgment is rendered against the plaintiff on the ground that the note was paid in full before the commencement of the suit, the plaintiff, by such adjudication, has had his day in court. The question of payment determined against him was not only a full defense for the promisor against whom that suit was instituted, but also a full discharge for the other makers, from the debt indicated by the note, and the judgment, as conclusive evidence of such payment, could not be excluded in a subsequent action against a maker of the note, though not a party of record to the former adjudication, without unjust discrimination as to the respective rights and remedies of the parties in the prosecution and defense of suit or suits upon such a contract."

As against payee.

A judgment in favor of the maker of a note, on the merits, in an action by an assignee or indorsee, is a bar to a subsequent action brought by the payee. Levi v. McCraney (1841) 1 Morris (Iowa) 91; Soward v. Coppage (1888) 10 Ky. L. Rep. 436, 9 S. W. 389; Leslie v. Bonte (1889) 130 Ill. 498, 6 L.R.A. 62, 22 N. E. 594.

And a judgment in favor of the holder of the legal title to a promissory note is a bar to a subsequent suit thereon by the payee. Illinois Conference, E. A. N. A. v. Plagge (1898) 177 Ill. 431, 69 Am. St. Rep. 252, 53 N. E. 76.

A judgment canceling a note, in a suit between the makers thereof and the real owner of the note, is a complete bar to a recovery in a subsequent suit by the payee, who was merely a nominal party to the note. Alexander

County Nat. Bank v. Foster (1907) 124 Mo. App. 344, 101 S. W. 685.

The interest of the payee of a note, who is not a party to a suit by the assignee to foreclose a trust deed securing it, in which the maker by cross bill sought a cancelation of the note, is not affected thereby. Bass v. Boeries (1917) 116 Miss. 419, 77 So. 189.

Judgment obtained by an indorsee against the maker of a note is not conclusive so as to prevent the maker from setting up as against the payee a failure of consideration after the date of the judgment. Wright v. Bixler (1827) Walk. (Miss.) 256.

A judgment recovered by a bona fide indorsee against the maker of a promissory note does not estop the latter from maintaining a suit against the payee to recover the amount of such judgment on the ground of a failure of the consideration for which the note was given, since the payee, not being a party to that litigation, was neither bound nor prejudiced by the result, and therefore cannot take advantage of it. Nowak v. Knight (1890) 44 Minn. 241, 46 N. W. 348.

A judgment recovered on a note by an indorsee against the maker, who attempted to defend the suit on the ground that the note had been fraudulently transferred by the payee without any consideration, and setting up an agreement by the payee to pay the note itself upon the sale of certain stock, is not an adjudication of the rights of the maker against the payee, so as to preclude a subsequent suit Johnson v. Carr (1916) 90 Wash. 106, 155 Pac. 778.

As against pledgeor.

A judgment in an action brought by a pledgee of a promissory note against the maker is not binding on the pledgeor. Bailey v. Inland Empire Co. (1915) 75 Or. 309, 146 Pac. 991.

In favor of guarantor.

Allegations in an action by indorsees of a note against the maker are not available as an estoppel to a guarantor who was not a party to the

suit. Cobb v. Little (1823) 2 Me. 261, 11 Am. Dec. 72.

Real party in interest.

One for whose benefit, and at whose expense, a suit was commenced and prosecuted, is bound by the verdict therein. Rogers v. Haines (1825) 3 Me. 362.

A judgment in an action on a promissory note by the executor of a decedent is binding upon one who assumed the defense of the action, claiming the note as his own. Bachelder v. Brown (1882) 47 Mich. 366, 11 S. W. 200.

A judgment on a promissory note in which the defense set up was that the plaintiff therein was not the owner of the note, and in which one claiming to be the real owner employed counsel to defend the action and paid the costs of the defense and was a witness upon the trial, is conclusive as to the ownership of the note in a subsequent suit brought to enjoin the collection of the judgment. Stoddard v. Thompson (1870) 31 Iowa, 81.

The judgment in an action upon a note given for the purchase price of personal property is conclusive upon one who, claiming the property as his own, assumes the defense of an action on the note, upon the maker's agreement to pay him the purchase price of the property in case the defense is successful. Estelle v. Peacock (1882) 48 Mich. 469, 12 N. W. 659.

As against transferee of party to first suit.

A judgment in favor of the maker, in an action on a note in the name of the payee for the use of the holder, is a bar to a second action on the same note in the name of the assignee. Drake v. Perry (1871) 58 Ill. 122.

A judgment on a note lost after maturity is a complete bar to another action brought by any person receiving it after maturity. Elliott v. WoodWard (1862) 18 Ind. 183.

A decree in a suit on a note is binding on one to whom the note was as

signed during the pendency of the

action, a judgment being binding on privies as well as on the parties. Buckner v. Geodeker (1897) Tenn. —, 45 S. W. 448.

But an indorsee of a negotiable note in good faith and for value, who acquires it before maturity without notice of a pending suit against his indorser, is not bound by the decree therein, though he acquired the note after its rendition. Winston v. Westfeldt (1853) 22 Ala. 760, 58 Am. Dec. 278.

A judgment in favor of the maker of a note, in a suit brought thereon in the name of the payee by one to whom an assignee of the note had intrusted it for collection, is prima facie evidence in favor of the maker in a subsequent suit on the same note brought by the assignee, although it is not such a form of recovery as can be pleaded as an estoppel. Hackleman v. Harrison (1875) 50 Ind. 156.

The maker of a negotiable promissory note indorsed without recourse by the payee is estopped by the judgment rendered in a former action commenced by him against the indorser, to litigate with the indorsee the same questions decided in the former suit; and this although the indorsee acquired title to the note before the former suit was commenced, and was not a party thereto. Cressler V. Brown (1920) 79 Okla. 170, 192 Pac. 417.

The assignee of a promissory note acquiring title from the payee under an indorsement without recourse is neither concluded nor estopped by a judgment rendered in a suit commenced by the maker of the note against the payee after the assignee acquired title to the note. Ibid.

In the reported case (MACEDONIA STATE BANK v. GRAHAM, ante, 148) it was held that a judgment obtained by the maker of a note against the payee, adjusting liability for fraud in obtaining it, which was based upon the theory that the maker had paid the note, precluded his setting up the fraud in defense of the note or a renewal of it in the hands of the transferee.

And in Scott v. American Nat. Bank (1904) 37 Tex. Civ. App. 527, 84 S. W. 445, a judgment in favor of the payee of a note given as part of the consideration for the transfer of certain leases, in an action to cancel the note on the ground of failure of consideration, was held to be res judicata in an action brought by an indorsee of the note, who was not a party to the first suit. The court said: "Had the bank [the indorsee] failed to recover against Scott [the maker] Slaughter [the payee] would have been responsible to the bank for the amount of the note. Slaughter having been a party to this suit and having defeated Scott's defense against the note by interposing the judgment in bar, it inured to the bank's benefit by removing all obstacles to a recovery."

As against one who transferred note to party to first suit.

An action brought by the second indorsee on a note against the maker, who was successful in defending it, is a bar to a second action by the first indorsee. Zimmerman v. Zimmerman (1853) 15 Ill. 84.

A judgment against the maker of a note is no bar to a suit thereon against the indorser so long as it remains unsatisfied. Eastman v. Winship (1833) 14 Pick. (Mass.) 44.

An action by the indorsee against the maker of a note does not bar a subsequent suit against the indorsers. on their contracts. Marine Trust Co. v. Roden (1922) 218 Mich. 693, 188 N. W. 397.

The merger of promissory notes in a judgment thereon against the maker does not bar a suit thereon against the indorsers if the judgment is not satisfied. Petri v. Manny (1918) 99 Wash. 601, 1 A.L.R. 1595, 170 Pac. 127.

A judgment against the maker of the note is not res judicata in a subsequent action against the indorser. Carter, R. & Co. v. Howard (1896) 17 Misc. 381, 39 N. Y. Supp. 1060.

A judgment in an action brought on a note in the name of an agent authorized to demand payment and deliver to an attorney for collection, and successfully defended on the plea of set-off against the payee, is not a bar

to a subsquent action on the note by the owner, who was not shown to have had notice of the pendency of the first action. Lawrence v. Ware (1861) 37 Ala. 553.

As to whether a judgment, in an action by an indorsee against the maker or a remote indorser, may be used as evidence in a subsequent suit by the indorsee against his indorser, who had no notice of the first suit, there is a difference of opinion. That such a judgment is not evidence of a fact litigated therein, see Morris v. Lucas (1846) 8 Blackf. (Ind.) 9; Maupin v. Compton (1813) 3 Bibb (Ky.) 214; Morgan v. Simmons (1830) 3 J. J. Marsh. (Ky.) 611; Barker v. Cassidy (1853) 16 Barb. (N. Y.) 177. Other cases hold that the judgment is prima facie evidence (see Hagerthy v. Bradford (1846) 9 Ala. 567; White v. Webster (1877) 58 Ind. 233), though not conclusive (see Brown v. Chaney (1846) 1 Ga. 410; Ewing v. Sills (1848) 1 Ind. 125).

But where the indorser was informed of the pendency of the suit and advised of the defense interposed, and so given an opportunity of controverting it, a judgment sustaining the defense is conclusive upon him in an action subsequently brought by his indorsee. See Hagerthy v. Bradford (1846) 9 Ala. 567; Bullock v. Winter (1851) 10 Ga. 214; Drennan v. Bunn (1888) 124 Ill. 175, 7 Am. St. Rep. 354, 16 N. E. 100; Cressey v. Kimmel (1898) 78 Ill. App. 27; Marquardt Sav. Bank v. Sheppleman (1901) 97 Ill. App. 31; Walker v. Ferrin (1832) 4 Vt. 523; Carpenter v. Pier (1858) 30 Vt. 81, 73 Am. Dec. 288). This is in accordance with the rule that when a person is responsible to another, either by express contract or by operation of law, and notice has been given him of the pendency of the suit, and he has been requested to take upon himself the defense, he is no longer regarded as a stranger to the judgment that may be recovered.

A judgment in a suit brought on a note by an indorsee which was successfully defended by the maker on the ground of failure of consideration is no evidence of such failure in a sub