are no defense to an action against the indorser.774 And even a joint action against the makers of a joint and several note has been held to be no bar to an action against one maker severally.775 But in some states the statute provides that not more than one suit shall be brought on one note at the same time.776

Action against Indorser-Surety-Diligence.

777

§ 1662. Where several parties indorse for the accommodation of the maker, and the note is paid by the last of them, he may recover against the prior indorsers the whole amount paid, or he may at once sue the maker without previously resorting to the payee, although the accommodation was for the latter.778 But an indorser, in suing a prior indorser for money paid, must prove the payment made by himself, and it is not sufficient proof to show a previous judgment recovered by his indorsee against the several indorsers.779 And an indorsee cannot sue a remote indorser on the common counts for money had and received." 780

Where a note is assigned by deed, a covenant contained in it, that the note shall be first paid out of the proceeds of the land conveyed, will not render the assignor personally liable for its payment.781 And an averment in the declaration on a note to the effect that it was assigned in writing is not equivalent to an averment that it was duly indorsed.782 While an indorser holds a note as collateral under a reas

774 Kenworthy v. Hopkins, 1 Johns. Cas. (N. Y.) 107.

775 Turner v. Whitmore, 63 Me. 526.

776 INDIANA (Horner's Rev. St. § 5516); Morrison v. Fishel, 64 Ind. 177. So, in MARYLAND, as to a joint and several note, when the persons executing it are alive and live in the same county (Pub. Gen. Laws, art. 50, § 2).

777 Mason v. Mason, 3 Cranch, C. C. 648, Fed. Cas. No. 9,245; Id., 4 Cranch, C. C. 401, Fed. Cas. No. 9,246. Or he may transfer the note after paying it, and his indorsee may sue the prior accommodation indorser. Mc-. Carty v. Roots, 21 How. 432.

778 Mullen v. French, 9 Watts (Pa.) 96.

719 Barker v. Cassidy, 16 Barb. (N. Y.) 177.

780 Mandeville v. Riddle, 1 Cranch, 290, reversing 1 Cranch, C. C. 95, Fed. Cas. No. 11,807. And see § 1674, supra. Although he might sue such indorser in equity, Riddle v. Mandeville, 5 Cranch, 322.

781 Richards v. Holmes, 18 How. 143.

782 Keller v. Williams, 49 Ind. 504. And the assignor should be a party defendant.

signment to him from the plaintiff, he is not liable to be sued on it, although it would be otherwise after payment of the debt secured.783 In some states an indorser or surety cannot be sued until proper diligence has been used to collect from the maker or principal debtor.784 And, if a note can be collected from the maker, the assignor cannot be sued on his covenant.785 In Kentucky the assignee must first proceed against the maker, without unreasonable delay, to a return of execution unsatisfied, the question of diligence being one for the court to determine." 786 But in Illinois the indorser may be sued at once, if the maker has been adjudged a bankrupt."

Action against Drawer.

787

§ 1663. The holder of a bill may bring suit against the acceptor and drawer, or either of them, and he may sue the acceptor for the use of the drawer.788 So, he may prove the full amount of the bill in bankruptcy against both acceptor and drawer, deducting dividends already received before proof and accounting for any excess in final dividends.789 The words "value received" in a bill of exchange indicate, in general, the consideration received by the drawee, but on proof of its being received by the drawer the holder may recover against him on the common counts.790

Where the bill is paid by an accommodation acceptor, he may have his action against all the drawers, including a third party who has indorsed the bill for that purpose at the time it was drawn.791 But the acceptor cannot bring suit against the drawer until he has himself paid the bill.792

783 Smith v. Felton, 85 Ind. 223.

784 See § 762 et seq., supra. So, Lee v. Love, 1 Call (Va.) 497.

785 Swall v. Clarke, 51 Cal. 227.

786 Francis v. Gant, 80 Ky. 190. But it is not necessary to prove that a judgment in personam was rendered against a maker who was a married Woman. Green v. Page, Id. 368.

787 National Bank of Commerce v. Booth, 5 Biss. 129, Fed. Cas. No. 10,036. 788 Davis v. Baker, 71 Ga. 33.

789 Ex parte Wildman, 1 Atk. 109.

790 Highmore v. Primrose, 5 Maule & S. 65; Pleiss v. Maule, 2 Miles (Pa.) 186.

791 Church v. Swope, 38 Ohio St. 493.

792 Parker v. U. S., 1 Pet. C. C. 262, Fed. Cas. No. 10,750.

Action against Acceptor-Drawee.

794

§ 1664. The drawer may bring suit against the acceptor on his refusal to pay an accepted bill, but in case of nonacceptance he can only sue the drawee upon his agreement to accept.793 If the drawee admits that he owes the drawer of a check, and promises that it shall be honored, he will be liable on such promise to the holder, even though the check was postdated and void." So, if he promises to pay the bill when in funds, and the holder retains it for that purpose, the drawee will be liable, when in funds, for money received to the holder's use.795 And if the bill is payable out of a particular fund, and the acceptor receives the fund and applies it to other drafts, he will be liable to the holder of the bill." 796 But the mere mention of a particular fund in a draft, as means of reimbursement, will give the payee no right of action against the drawee prior to acceptance. And, where a draft is not yet accepted, the fund in the drawee's hands will remain liable to an attachment against the drawer.798 A check, like a bill of exchange, gives the holder no

797

7932 Daniel, Neg. Inst. 238. And see § 589, supra. And substantial damages may be recovered, Rolin v. Steward, 14 C. B. 595; but not on the ground of slander for saying the drawer's account was overdrawn, Etting v. Bank, 7 Rob. (La.) 459.

794 Ardern v. Rowney, 5 Esp. 254. So, where the drawee has funds of the drawer, and verbally promises to pay the check, he may be sued by the indorsee. Leach v. Hill (Iowa) 76 N. W. 667. And see §§ 589, 643, supra.

795 Chit. Bills, 360; Stevens v. Hill, 5 Esp. 247; Kilsby v. Williams, 5 Barn. & Ald. 816, 1 Dowl. & R. 476. And such draft and promise to pay amount to an equitable assignment of the fund. Ex parte Alderson, 1 Madd. 53, 2 Rose, 447. But an action against the drawee is not supported by his promise to the plaintiff, without consideration, to pay the draft, although the drawee was indebted to the drawer, and the drawer had credited the draft to him without charging it to the payee or releasing him. Fairchild v. Feltman, 32 Hun, 398.

796 Grammer v. Carroll, 4 Cranch, C. C. 400, Fed. Cas. No. 5,681.

797 Brill v. Tuttle, 81 N. Y. 454.

798 De Liquero v. Munson, 11 Heisk. (Tenn.) 15; Cushman v. Haynes, 20 Pick. (Mass.) 132; Sands v. Matthews, 27 Ala. 399. But see, contra, Miller V. Hubbard, 4 Cranch, C. C. 451, Fed. Cas. No. 9.574; although the drawee had no notice until after the attachment, King v. Gorsline, Id. 150, Fed. Cas. No. 7,796.

claim on the fund in the drawee's hands until it is accepted." And, if it is revoked by the drawer before it is presented, the drawee will not be liable to the holder, and the check will not be entitled to any priority over other checks afterwards drawn.800 But in Illinois a bank check, drawn upon a banker having sufficient funds, is a legal transfer of the fund, and the bank is liable to an action upon the check by any holder. 801 But this is not so if there are not sufficient funds to meet it.8 802

Parties Jointly Liable.

§ 1665. Parties who are jointly liable on a bill or note must, in general, be jointly sued. But a statute providing that defendants who are not to be found in the district need not be joined is applicable to joint notes.803 Successive indorsers cannot, however, be held as joint makers.804 And a joint action has been held not to lie against three makers of a note, some of whom signed with a seal (making it their bond), and some without.805 But one who signs a note as maker may be sued with his co-makers, although he adds the word "security" to his signature. 806 But if he adds his signature, in

799 Dickinson v. Coates, 79 Mo. 250; Merchants' Nat. Bank v. Coates, Id. 168. And see §§ 589, 643, supra. Especially where there are not sufficient funds in the bank. Dana v. Bank, 13 Allen (Mass.) 445. And see §§ 589, 643, supra.

800 Dykers v. Bank, 11 Paige (N. Y.) 612. But in Wisconsin a check amounts to an equitable assignment of the fund pro tanto, and the drawer cannot stop the payment arbitrarily. Pease v. Landauer, 63 Wis. 20.

801 Union Nat. Bank v. Oceana Co. Bank, 80 Ill. 212.

802 Coates v. Preston, 105 Ill. 470.

803 Burdette v. Bartlett, 95 U. S. 637; Rev. St. U. S. § 737.

804 Camden v. McKoy, 4 Ill. 437. So, a wife indorsing her husband's note, expressly charging her separate estate, is not liable as a joint maker with him. Hosford v. Hotchkiss, 27 Fed. 285.

805 Biery v. Haines, 5 Whart. (Pa.) 563.

806 Craddock v. Armor, 10 Watts (Pa.) 258. So, where additional makers sign as sureties, after the maturity of a joint and several note, they become at once liable with the others as makers. McVean v. Scott, 46 Barb. (N. Y.) 379. But the payee of a joint and several note, by indorsing as "surety," cannot render the makers liable with him in a joint action. Martin v. Fales, 24 N. H. 242. And where the original relation of the principal and surety is reversed by subsequent agreement between themselves, the new surety

808

that manner, after the payee's death, he is in reality a guarantor, and not a joint maker, and should be separately sued as such, although he afterwards agreed with the payee's administrator to be liable as principal debtor.807 On the other hand, it has been held that a judgment may be entered against the principal alone on a warrant of attorney to confess a joint judgment against principal and surety. But one joint maker cannot be held severally upon a mere offer, after the insolvency of his co-maker, and on application for a joint and several note, to remit the amount in a few days.809 § 1666. Judgment rendered against one joint maker of a note is a bar to further action against the other.810 But, where several notes are given in settlement of one original cause of action, they may be sued separately, and payment of one judgment will not release the others.811 A judgment in attachment, like a personal judgment, cannot be rendered against one of two joint makers.812 But a joint maker sued alone can only object to the nonjoinder of the others by plea in abatement,813 or, if the defect appear on the face of the declaration, by demurrer. 814

If one of several joint acceptors is an infant, he may be omitted, and the others declared against as accepting the bill in the joint name.815 And, if all the parties jointly liable are sued, the failure to serve any of them cannot be availed of as matter of abatement.816 In Georgia a joint debtor, who is sued, but not served, in the first

may have the execution directed primarily against his principal. McTaggart v. Dolan, 86 Ind. 314.

807 Ives v. McHard, 2 Ill. App. 176.

808 Huntington v. Finch, 3 Ohio St. 445.

809 Jones v. Beach, 2 De Gex, M. & G. 886.

810 Holman v. Langtree, 40 Ind. 349; Mitchell v. Brewster, 28 Ill. 163; except where the other is not a resident of the state, and could not, therefore, be joined in the suit, Cox v. Maddux, 72 Ind. 206.

811 Nathans v. Hope, 77 N. Y. 420.

812 Bright v. Hand, 16 N. J. Law, 273.

813 Wilson v. Reddall, Gow, 161; Hyde v. Lawrence, 49 Vt. 361. And a verdict for the plaintiff on such plea filed by A. and B. is conclusive in a subsequent creditors' bill by plaintiff, as against a similar plea filed by A. alone. Dows v. McMichael, 6 Paige (N. Y.) 139.

814 Straus v. Bank, 36 Hun, 451.

$15 Burgess v. Merrill, 4 Taunt. 468.

816 Boots v. Boots, 84 Ind. 171.

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