Claxton and swift ante p rot case on a bill of exchange endors d case on the  custom of merchant on a bill of exchange the defendant who be one of the mesne  endorsers plead a judgement recover by the plaintiff against the drawer the  plaintiff demurrer to the plea shower pro quer the plea be not good for a  assumpsit in law be create by draw the bill to we and he show no satisfaction  No plea in bar be good which do not answer or avoid the plaintiff S  declaration this contract of the defendant be several and distinct from the  contract of the drawer and a indebitatus lie against the drawer though not  against the endorsor where there be two obligors judgement against one can be  plead in bar against the other our election be not determine by our first  judgement cro Yelv and the case in more affect not our case for there the  action be find upon a tort we upon a right Indebitatus assumpsit be of the  same nature with debt   Slade S case in the case in Yelv c the damage be  uncertain by in we two warrant land the warrantor have judgement against one  yet he may sue the other Fitzherbert nat Br the endorsor by superscribing make  in effect a new bill of exchange Comberbach er p the form of plead be for I  nonpayment must be allege therefore no proceed without satisfaction can be a  bar note this be chief rely d on holt contra the question be when the last  endorsee waive all mean endorsement and sue the first drawer and have  judgement whether he may sue any of the mean endorsers after I agree he have  such election for it be as a new bill of exchange but now he have make his  election it will be inconvenient that this action shall lie for then Hugh will  be liable to two action and two judgement No case in law resemble this but  that of a warranty where there be warranties over if he come upon the first  Comberbach warrantor he shall never after take advantage against any of the  mean warrantors so in our case where one be liable to two man action for the  same thing he only which bring the first action shall recover and he shall not  be charge by the other I cro h a like case he have here make his election and  this not like the case of a bind the case of brown and Wotton in Yelverton  come up to our case our action be a indebitatus assumpsit but ground upon a  special custom this not like a promise for that be collateral but in our case  one thing depend on another by the nature of the thing and he have waive what  before he ought to have take advantage of the court seem d to allow the reason  urge by holt and Wythens say all action on the case be find upon a deceit and  run fraudulently c and be like to a tort judgment pro to ward off nisi c note  Feb sir Bart shower cite this case in b r and say this judgement be reverse in  cam scacc