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on the note, and not for money paid to the maker's use.
And an accommodation maker can plead as payment, to such action, that his co-maker, before the action was brought, "fully paid and satisfied the note” by a transfer of certain rents.3.
One who becomes guarantor of a note by indorsing it before delivery to the payee, and who takes it up at maturity, may sue the maker as a purchaser.360 And if two joint indorsers take up the note, and one delivers it to the other, the latter may bring suit against the maker in his own name as an indorsee.361
Payment by Indorser after Judgment.
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$ 1432. Where suits are pending against both indorser and maker, and the indorser pays with the understanding that the holder's suit against the maker shall be continued for his benefit, the payment by the indorser cannot be set up in defense by the maker.3 So, the in dorser may take an assignment of a judgment rendered against the
or of a judgment rendered jointly against maker and indorser, 364 and hold it against the maker. But if he suffers a sale of his property on execution under such judgment rendered in an attach
Goza, 2 La. Ann. 612. In GEORGIA he may recover the amount paid by him without interest and costs (Code, $82161, 2171). In MARYLAND he may recover the amount paid and interest, including damages paid on foreign bills (Pub. Gen. Laws, art. 13, $8 2, 5).
358 Howell v. McCracken, 87 N. C. 399; Fenn v. Dugdale, supra. 359 Johnson v. Breedlove, 72 Ind. 368. 360 McGregory v. McGregory, 107 Mass. 543. And one joint indorser may recover his half, although judgment has been recovered by the other for his half. Id.
361 Havens v. Huntington, 1 Cow. (N. Y.) 387.
362 Mechanics' Bank v. Hazard, 13 Johns. (N. Y.) 333; Madison Square Bank v. Pierce, 137 N. Y, 444, 33 N. E. 557; Mercantile Nat. Bank v. Macfarlane (Minn.) 74 N. W. 287.
363 Clason v. Morris, 10 Johns. (N. Y.) 523; Folsom v. Carli, 5 Winn. 333 (Gil. 264); on paying a separate judgment against himself, Lyon v. Bolling, 9 Ala. 463. Such judgment may be enforced in Illinois by a creditors' bill. Crawford v. Logan, 97 III. 396.
364 Corey v. White, 3 Barb. (N. Y.) 12; Davis v. Perrine, 4 Edw. Ch. (N. Y.) 62; Feamster v. Withrow, 12 W. Va. 611. He is entitled to an assignment of the judgment recovered against both. Allin v. Williams, 97 Cal. 103, 32 Pac. 441. So, by statute in NEW JERSEY (2 Gen. St. p. 2538, 8 36). And
ment suit, and assigned to the maker's surety in the attachment, his recovery can only be in a new action against the maker.365
Payment by the indorser is no extinguishment of the bill as against prior indorsers, whether he pays the bill itself or a judgment rendered upon it.366 And an indorser may make payment to a sheriff, after judgment recovered against the sheriff for laches in proceeding against the maker, and may recover on the strength of such payment against a prior indorser.367 An indorser who pays a bill or note may sue prior indorsers in his own name, or in the name of the collecting bank to whom he made the payment.368 And if an indorser is himself released by making a partial payment, it will not inure to the benefit of a prior indorser, so as to discharge him in whole or in part.369
Liability of Acceptor to Indorser.
§ 1433. Payment by an indorser will not discharge the acceptor of a bill, unless the acceptance was made for the accommodation of such indorser.370
And if a bill is accepted and indorsed for the accommodation of the drawer, and is paid by the accommodation indorser, he
this is true although the indorser signed for the accommodation of the maker. Varsb v. Benedict, 14 Hun (N. Y.) 317.
365 March v. Barnet (Cal.) 51 Pac. 20; and only to the amount credited on the execution after payment of costs, Id., 114 Cal. 375, 46 Pac. 152.
366 Cotten v. Bradley, 38 Ala. 506. So, an indorser who takes up a note after a prior indorsement in blank has been filled up specially to his indorsee may hold such prior indorser. Cole v. Cushing, 8 Pick. (Mass.) 48. So, an indorser who takes up a note may sue a prior indorser who indorsed it for the maker's accommodation, Kelly v. Burroughs, 102 N. Y. 95, 6 N. E. 109; or a guarantor, Bunker v. Langs, 76 Hun, 543, 28 N. Y. Supp. 210.
367 Baker v. Martin, 3 Barb. (N. Y.) 634. 368 Bank of America v. Senior, 11 R. I. 376. 369 Story, Bills, $ 425; Bank of Kentucky v. Floyd, 4 Metc. (Ky.) 159. 370 Story, Bills, $ 422; although he paid the bill at the drawer's request, Tomlin v. Lawrence, 3 Moore & P. 555. And he actic may be brought in the name of the indorsee for the use of the indorser. Williams v. James, 19 L. J. Q. B. 445. And if part has been paid by the indorser, and the balance by the acceptor, the indorser may recover his part against the acceptor as money paid to his use. Pownal v. Ferrand, 6 Barn. & C. 439, 9 Dowl. & R. 603.
will have a right of action against the accommodation acceptor, 371 as well as against the drawer who was accommodated.37
But if an indorser pays a bill after judgment recovered by his indorsee against the drawer, but in favor of the surety, he will obtain no rights by such payment against the surety.373 And if a note is taken up at its maturity by the principal maker and the holder (who had indorsed for collection), the former paying the interest, and the latter paying the principal and retaining the note, the note will be regarded as paid as against the surety, and he will be discharged. 37
Even where the indorser has been himself discharged (e. g. by want of notice), and afterwards pays the note, he may still hold a prior indorser who has not been discharged by the holder's laches, either as a purchaser from the holder or in his original capacity as indorsee.315 And in suing such prior indorser it is not incumbent on him to prove due notice of dishonor to himself or other legal compulsion.376 So, , an accommodation indorser, after paying the note at its maturity, may bring an action against the maker whom he has accommodated, although he paid without waiting for formal demand on the maker or notice of dishonor to himself.37 But an indorser who has been himself discharged by laches, and afterwards pays a bill or note, cannot sue another and prior indorser who has also been discharged, 375 although the indorser who made payment did not know of the laches, by which he was discharged, at the time he made the payment. ? In like manner, if an indorser has been discharged, and afterwards voluntarily pays a note or bill, he cannot enforce a collateral security which
871 Chit. Bills, 282; Houle v. Baxter, 3 East, 177; Gillespie v. Campbell, 39 Fed. 724. But see Wiffen v. Roberts, 1 Esp. 261; Brown v. Maffey, 15 East, 220.
372 Low v. Copestake, 3 Car. & P. 300.
378 Story, Bills, & 423; Turner v. Leech, 4 Barn. & Ald. 451; Roscow v. Hardy, 12 East, 435.
379 Chit. Bills, 481; 2 Daniel, Neg. Inst. 233; Wilson v. Ray, 2 Perry & D. 253.
was given to him for his indemnity, such indemnity being only against the legal liability.350
Reissue by Indorser.
$ 1434. An indorser who pays a bill or note may reissue it, and such reissue will amount to a new note as to him, 381 and will also bind prior parties to the paper; 382 but one who indorses a note before its delivery to the payee, and pays it at maturity, thereby extinguishes the instrument, and he cannot afterwards reissue it so as to render the maker liable to his indorsee.383 If an indorser takes up a note after its dishonor, and subsequently delivers it, with a blank indorsement uncanceled, to the holder's agent for collection, it will not be a payment of the note, and will transfer the legal title as effectually as if the transfer had been made before maturity.384 But if the indorser takes up a note at maturity, and afterwards reissues it, an accommodation maker will be no longer liable.385 And a note paid by the last indorser is, properly speaking, no longer negotiable in his hands. 386 The personal representative of an indorser, being in effect a trustee, can only take up a bill or note as such representative, with the same
380 2 Daniel, Veg. Inst. 253; 2 Pars. Notes & B. 209; Bachellor v. Priest, 12 Pick. (Mass.) 399.
381 2 Edw. Bills & N. & 723; Ward v. Allen, 2 Metc. (Mass.) 53. And if he reissues the note with his indorsement uncanceled he will be liable without notice of fresh dishonor by the maker. St. John v. Roberts, 31 N. Y. 41.
3*2 2 Daniel, Seg. Inst. 263; 2 Edw. Bills & N. 88 723, 727; e. g. as against maker, Gomez Serra v. Berkley, 1 Wils. 46; and the maker will remain liable to his indorsee, Howell v. McCracken, 87 N. C. 399; Guild v. Eager, 17 Mass. 615; Woodman v. Boothby, 66 Me. 389; Kirksey v. Bates, 1 Ala. 303. So, too, a prior indorser, although he originally held the note as indorsee of the payee for his own indemnity, as the payee's surety, and afterwards reindorsed it to the payee, who reissued it by indorsement to the plaintiff. Emerson v. Cutts. 12 Jass. 78. But where the maker has been discharged by a surrender to the paree of the original consideration, the payee only will be liable on the reissue of the note. Kelly v. Staed, 136 Mo. 430, 37 S. W. 1110.
34.3 Pray r. Maine, 7 C'ush. (Mass.) 233. 38+ French v. Jarvis, 29 Conn. 347.
345 Blenu v. Lyford, 70 Me. 149; Pyper v. McKay, 16 U. C. C. P. 67; Gardner v. Maynard, 7 Allen (Mass.) 456.
346 Boşlsion v. Greene, 8 Mass. 465; Blake v. Sewell, 3 Jass. 556. As regards subsequent indorsements, Mead v. Small, 2 Me. 207.
effect as an indorser, and not as an individual purchaser. 387
But if, after the death of an indorser who has been discharged, the note is paid by his administrator, he can recover against the maker.388
In general, an indorser is entitled to be subrogated, like a surety, to any collateral security held for the payment of the note or bill.3 8 9 Thus, collateral deposited with a bank to secure the discount of a note will inure to the benefit of an accommodation indorser who pays it.390
But if the acceptor of a bill drawn or indorsed for his accommodation gives a deed of trust to indemnify the second and third indorsers, the first indorser can only be subrogated to their rights upon payment of the bill, and cannot, in the meantime, require them to sell and apply the trust property, or enjoin them in equity from collecting the bill.381 And, in general, an indorser can neither be subrogated to collateral security until he has paid the bill, nor can he compel the holder to exhaust the collateral before proceeding on the bill. 392
Payment by Principal.-Surety.
$ 1435. If a bill or note is paid by the principal debtor, such pay. ment will discharge the surety,393 unless the payment is itself afterwards declared void; e. g. because made in contemplation of bankruptcy.894 If the paper is paid by a guarantor, he will be entitled to an action against the maker or other party guarantied by him. 386
387 2 Daniel, Neg. Inst. 253; 2 Edw. Bills & N. $ 727; Burton v. Slaughter, 26 Grat. (Va.) 914.
388 Kennedy v. Carpenter. 2 Whart. (Pa.) 344.
389 National Exch. Bank v. Silliman, 65 N. Y. 475; Shutts v. Fingar, 100 N. Y. 539, 3 N. E. 588; O'Hara v. Haas, 46 Miss. 374.
390 Duncan v. Bank, 6 App. Cas. 1; and will not be subject to defense as against a purchaser after maturity, Arnot v. Woodburn, 35 Mo. 99.
391 Dunlap v. Clements, 7 Ala. 539.
303 See 88 941, 942, supra. So, payment by the party accommodated is equiralent to payment by the acceptor, and discharges the surety. Benj. Chalm. Dig, art. 234.
3 94 Petty v. Cooke, L. R. 6 Q. B. 790.
39. Such action accrues immediately after payment. King v. Hannah, 6 Ill. App. 495; although made without the knowledge of the principal, Teberg v. Swenson, 32 Kan, 224, 4 Pac. 83; and may be brought in his own name, Bishop v. Rowe, 71 Me. 263; or in that of the payee, Granite Nat. Bank v.