Claxton and swift the plaintiff bring a action sur case against the defendant  and declare upon the endorsement of a bill of exchange the defendant plead  that the plaintiff have bring his action against Hugh the drawer and have  judgement against he and upon this the plaintiff demurrer and it be argue that  this be not a plea in bar of this action because it do not answer or avoid the  charge of the declaration which be that he have endorse this bill to the  plaintiff and by it make himself subject to the payment if the drawer do not  pay it and it be lie in the declaration that the money be not pay and then  though there be a recovery yet this be not a bar to the plaintiff for this  endorsement be as a new bill and a new contract and be a several contract from  the drawer S contract and of a different nature and there ought to be a  recovery upon it by a different action for upon the endorsement only all  action upon the case lie upon the special custom of merchant but against the  drawer all indebitatus assumpsit lie upon the debt create by the law and so  the contract be several and of a several nature a recovery upon one be not a  bar without satisfaction no more than in the case of a bind for though this  contract be not of a nature so high as a bind yet it be of the same nature for  the one be verbal and the other a verbal contract put into write and turn into  a deed and if the deliverer when be part with his money will demand if the  person upon who the bail be draw will not pay what then the drawer and natural  equity will answer that the drawer will and in this case the endorse be in the  nature of a drawer and be regard as a drawer for if there be good endorsers it  be not usual to regard the drawer because they be all liable till the bill be  pay and as to the case of brown and Wooton Trin James r b Cr Yelv and Skinner  more it be say that there the case be find upon a tort and damage only to be  recover which after have be reduce to a certainty by a judgement be of another  nature and become a duty certain for which there be no remedy but all action  of debt or execution upon the judgement but here the action be ground upon a  debt which be always certain and he say that if one come with I S to Skinner  er p a draper and say to he that if he will sell cloth to I S and if he do not  pay the draper that he will himself and after the draper bring a action  against I S and recover a judgement and after bring a action against the other  and he plead this judgement in bar of it this will not be a good plea quod to  be concession per holt recorder on the other side there not be satisfaction so  in the principal case there not be satisfaction and the course of all  declaration be that the money be not satisfy this make this part to be  material to which the party ought to answer the which he have not do by this  plea and so the plea not good for which c holt the the case be Hugh draw a  bill of exchange upon pardoe Payable to swift who endorses it to Allen who  endorses it to Claxton Claxton bring his action against Hugh and have  judgement and after he bring this action against the defendant who plead ut  above and he say that it be a good plea for he say that Claxton may at first  have bring his action against Allen and then Allen may have charge swift and  he may have charge Hugh in respect of his charge but when he bring his action  against Hugh he have wave his liberty of sue Allen and swift and can sue they  after for if he may sue swift after then swift may sue Hugh and so Hugh shall  be double charge which be against all reason and he say that though this be as  a new bill by the endorsement yet it have a dependence upon the other bill and  compare it to a warranty a feoff b with warranty to he his heir and assign and  b feoff c with warranty and c be implead and vouch a as assignee of b and  recover he have waive his warranty against b and never shall vouch b and he  say this be not a new Skinner case that where one be liable to the action of  two person that by one action bring by one of they he shall not be liable to  the other as in the case of Middlemore and Goodale Trin car r b Cr where the  feoff covenant for he and his heir with the feoff his heir and assign to make  further assurance the feoff assign over and the assignee bring a action of  covenant and then the feoff release adjudge that the bring of a action have  attach a interest in the person of the assignee and the covenantee can not  release so in the case of a seize of tenant by statute merchant or elegit they  may have a assize though they have not a frank tenement and so may the tenant  of the frank tenement but if one recover the other shall be bar per Moyl h and  he say that the plaintiff may have sue either of they at first but by bring of  a action his election be determine and he can have resort to the other of such  opinion be Holloway and wright the other send away but after Withens come into  court and agree and because this cause have be depend in court a long time and  have be argue before they rule the plea to be good