case Claxton against swift if the endorsee of a bill on default of payment by  the acceptor recover against the drawer but do not take out execution this  recovery can be plead in bar to a second action on the same bill by the same  endorsee against the first endorse for though the endorsee have recover damage  he have not receive satisfaction SC ante SC Mod SC Lutw SC n Lut SC skin case  on the custom of merchant against the defendant as endorse of a bill of  exchange the defendant plead a recovery by the plaintiff against the drawer  the plaintiff demurrer this shower KB term I argue for the plaintiff a that  this matter which the defendant have plead be no bar for that I think be the  only question for I know of no exception take to the plaintiff declaration  then suppose both the declaration and the plea to be true as in fact they be  and now must be take so the sole question be whether their plea be any answer  to our charge first to consider the declaration it be find upon a special  promise or contract which the law suppose and raise by virtue of the custom of  merchant upon the fact which we have allege the custom of merchant be that  whatsoever merchant or other trade person shall endorse or superscribe any  note or bill of exchange and by such endorsement direct the acceptor of such  bill to pay its content to another that he thereby become Chargeable to pay  that sum himself in case the endorsee do not otherwise receive it the fact we  allege be this that a bill be draw and direct to be pay to the defendant and  that he by endorsement order its content to be pay to my client the plaintiff  now upon this custom and this fact I say the construction of law upon this  whole matter be that the endorsor the a it be settle that a person who be  admit into a copyhold estate for life purchase by himself although worth only  twentyfive shilling a year can be remove from such estate easter term whether  king v Edgware Foley bott p l but by Geo c S No person shall gain any  settlement in a parish by virtue of any purchase of any estate or interest in  such parish whereof the consideration for such purchase do not amount to the  sum of thirty pound good fide pay for any long or further time than such  person shall inhabit on such estate and shall then be liable to be remove to  such parish where such person be last legal settle before the say purchase and  inhabitancy therein and since this statute it have be hold that the surrender  of a copyhold estate be a purchase within the meaning of the legislature and  therefore unless it be worth thirty pound it will not gain the purchaser a  settlement king v Sawbridgeworth bott p l pl king v warblington term Rep a see  this case argue by Mr pollexfen and Mr Thompson ante shower KB er p defendant  have promise to pay the sum to my client in case the acceptor do not and this  be our charge that in consideration of this custom and this fact the defendant  assume c the law say this be a good consideration and it say further that if  we prove the consideration videlicet the custom and the fact correspond  thereto we need not prove any actual promise but the law and your lordship  will suppose one so that here be a assumpsit in law create by his endorse the  bill to we and it be sub condition that if the bill be not pay then he will  pay we and so be the custom lie to be and we have aver that the money be not  pay this allegation must be agree to be necessary in every declaration of this  kind and have it be omit they will undoubted have demurrer to our declaration  shower KB for it be as necessary here to say that the money be not pay as it  be in a to know facias against the bad to say that the plaintiff be not  satisfy of his debt and damage to this our charge they come and answer thus  you have sue the drawer and recover a judgement against he and he have not pay  you and therefore I will not pay you the drawer be bind to pay you as well as  I if the acceptor do not and therefore I shall not pay you neither now my Lord  there be no plea that can be a good bar to any action but what be in reason a  good answer to or evasion of the matter charge in the declaration and I humble  conceive this be no sort of answer to our charge we charge he upon a proper  several and respective contract promise or agreement of his own and here be  nothing of election in this case as I hope to evince present no more of  election than in case of two obligors on a joint and several bind this of the  defendant be a several contract in law different from that of the drawer he be  the original debtor the endorsor be as a fidejussor a security who by  implication by construction of law and by virtue of the custom of merchant  undertake to pay this money to my client in case the drawer who be the first  debtor nor his servant to who the bill be direct do not pay it and the more  endorsors there be the strong be the bill always esteem upon the exchange if  before the day of payment and of great real worth be it in itself because more  man be bind to the payment of it it be true it have be hold in this court in  the case of brown v London b that debt or a indebitatus will not lie against a  acceptor or endorsor but the chief reason there be because the exchequer have  rule it so before and they will not contradict their judgement for uniformitys  sake and the reason of law give be because the drawer be the original debtor  and the other but collateral and therefore they say the special matter ought  be set forth as we have do in our declaration but shower KB that do not deny  nay it rather affirm the case of the drawer and the endorse to be different it  be true it be the Sanle sum the same bill but yet the promise which the law  imply be several now my Lord I will observe to your lordship the natural  reason why the endorsor be Chargeable and that be because he be suppose to  have receive the value or other consideration from I for assign to I this bill  and it have be rule often that value receive be imply in every bill and  endorsement as much as when they be write in as many word now the law suppose  and that be the supposition which first ground this sort of contract or  engagement in the civil law and among merchant here that if at the time of the  make this endorsement my client shall have ask the defendant but what if this  bill be not pay he will have answer the drawer be a good man but what if the  drawer shall fail he will have answer then I will pay you all this be as  strong imply as if it have be write in express word so that our case be do  more than this Hugh promise that if the acceptor do not pay the bill be will  and the defendant promise that if the bill be not pay he will pay it for we  must still allege a too little unbound existen as I say before they be several  assumpsits upon several foundation and a promise by parole or a promise imply  in the law be the same with a engagement by bind as to this purpose and a  judgement against one be no more a bar against sue the other in the case of a  promise than it be in the case of a bind both the action be find upon contract  the one express the other imply our action at the least result ex quasi  shrinking and non assumpsit be b Mod SC keb SC lev SC vent SC Freem shower KB  er p the general issue to it there be nothing can discharge the defendant of  this his undertake but either payment at the day by the acceptor or  satisfaction afterward by some body for he have undertake to see it pay  nothing less than that can be any bar as it be necessary for we to allege a  nonpayment to make he Chargeable shower KB so it be necessary for he to allege  a payment or satisfaction to discharge himself and he do not deny his  assumpsit but admit it by his plea now it be agree that in the case of two  obligors judgement against one be not pleadable in bar by the other for  nothing less than satisfaction will discharge the debt a execution against one  without satisfaction will not discharge the other and so be the case of  blomfield v Usewick c and Whiteacres case d where it be resolve that nothing  but a satisfactory or valuable execution be a bar though there the defendant  be but one the sum the same the write the same but because the undertake be  several it be therefore so hold there it be for a debt and by judgement  against one the nature of the debt be not alter or change as to the other now  the same reason will hold here in our case here be no satisfaction plead nor  so much as a execution by the plaintiff judgement against Hugh the nature of  the defendant promise or contract be not change but his assumpsit to see we  pay this debt still continue and the money owe upon the bill remain still due  this be a debt by law and interest be always give upon these bill of exchange  in Slades case e it be resolve so for a plaintiff in a action of the case on a  assumpsit shall recover damage not only for the special loss which he have if  any such there be but also for the entire debt these be the word of the book  our action be not find upon alley tort our declaration have no general issue  but non assumpsit and that be the plea plead in the action they have set forth  here be nothing of a election in the case for both the drawer and the endorse  and the acceptor be all Chargeable on their several promise can it be pretend  that this plea will be good in the mouth of the acceptor who undertake be  distinct and upon quite another account than that of the drawer and this of  the defendant be as several and distinct as that it can be pretend that here  be such a election shower KB as in the case of two remedy for rend as annuity  or distress for then the very first act will determine our election then our  bare sue of Hugh will be pleadable in bar which no man will affirm then the  judgement without satisfaction can be no bar for as I say before it alter not  the defendant undertake as to the case of brown v Wotton f where trover be  bring for good and the defendant plea that he have bring his action for the  same good against another and have recover and have the defendant in execution  be hold a good bar that case if it must be agree for law do not affect we for  first there be a execution plead which be the end of the law second that be a  action find upon a tort and we be a action of right three there the action be  find on a wrong the damage be uncertain until the plaintiff have judgement and  reduce it to a certainty beside by that recovery in trover of damage the  property of the good be change and vest in that defendant against who the  plaintiff recover and the plaintiff can not seize they again before that time  it be make a question whether judgement and execution with a satisfaction be  pleadable by one trespasser and it be hold that with a satisfaction it be a  good bar but without it not so and so it be hold in Morton case g the reason  of Littleton text h that a release to one trespasser shall be a bar for other  be because the release acknowledge the plaintiff to be satisfy for the wrong  et only so much to be penalty and it be never pretend until that case of broon  v Wotton that a bare judgement shall be a bar but my Lord in all the book  where that case be report I there be this difference take between trover and  trespass and debt and case the one find on a tort the other on a right that in  the one the damage be uncertain in the other the sum in demand shower KB be  certain these be the very word of the book in more be report king now we be  not such a action for damage as trespass it be true we be for damage c   more  cro Elizabeth d cro car e   f cro James Yelv more g cro Elizabeth see bro Abr  judgement h sect I cro James more Yelv king more shower KB er p ration non  performationis but the assumpsit be for a particular sum our demand be for a  duty certain whereon interest be due and usual give by way of damage and case  and debt be much of a nature and case on a indebitatus and a action of debt  may be plead ill bar to each other and so be Slades case l until I be satisfy  of my duty no proceed against one can discharge the other and it be never  pretend that judgement on one man promise can discharge another of his promise  though the sum be the same indeed in trespass by the judgement against one the  uncertain damage be reduce to a certainty and change into another nature from  a action for a wrong to a action of right and he shall never resort back to  demand the uncertainty again but that in our case it be otherwise must be  agree to I if two man do by write covenant several and not joint each for  himself and not one for another that I S shall pay I twenty pound on such a  day I believe it will not be contend but that if the money be not pay I may  sue either and yet judgement against one shall not be pleadable by the other  the reason be because their engagement be several and they be the same here by  construction of law and yet this be a action sound in damage but result not ex  crime but ex shrinking and so do we in f n b there be these word a man may sue  diverse writ of warranty of charter vers diverse hommes if he have diverse  warranties against they and he shall recover several against they and the  reason be because the engagement be several though the land be the same and so  in our case they be several undertake or promise though for the same thing it  be true these action be not of any long stand so as to have many bookcase  concern they for by the statute of Richard c none can draw bill or return  money beyond the sea without shower KB leave or licence first obtain of the  king but at this day it seem otherwise by its common practice through the  indulgence of our king Reg origin fol the necessity of trade and commerce and  the usefulness and convenience of transfer money by bill of exchange have  introduce the same and the civil law allow they in other nation have occasion  their approbation here and among they the rule be where litter excambii non to  have execution duret prima obligation and I think the same rule ought to hold  with we this and every endorsement be as a new bill of exchange and have all  the requisite and party that a bill have as pray pay c and a man that have a  bill endorse have as it be two bill for the same sum and it be most true this  action be not joint and can be bring both against the drawer and endorse for  that the assumption be at several time and upon distinct consideration the  great objection be that we have here invert the course and shall deprive some  of they of their remedy if we shall be admit to resort back to the endorse but  I humble conceive not for that our judgement against Hugh will not be  pleadable against the defendant if he sue he after he have pay we for nothing  but satisfaction can excuse any of they against we or any other and a  satisfaction will be a good ground for a hearing complaint as in the case of  the two obligors we have rather pursue the right method in sue the first  obligor the drawer the original debtor and not find satisfaction from he we  resort to the defendant who be likewise Chargeable as I hope we may in this  action for the matter of election I will desire to know of they on the other  side when will they say our election be determine if at any time sure it must  be at the first suit but that will be more difficult to be determine why by  the judgement that alter nothing it be a duty before it sound then in debt and  so it do now No real difference as to this matter can be allege between this  and the case shower KB of two obligors have there be a satisfaction give to  the plaintiff for this duty there will be a end but that which I humble insist  on be that here be a duty certain it be ail action on the right and not on the  tort and spring ex shrinking not ex crime it be at least quasi shrinking and  the agreement of the drawer and of the endorse be diverse and distinct fact  and express agreement and the assumpsits which by construction of law be raise  upon these fact and agreement be several and distinct and be not to be compare  to that case of trespass and trover for there they may be join here they can  wherefore I do humble hope that until l   shower KB er p satisfaction you will  not exclude we from our remedy against any of those that be Chargeable to the  payment of it and therefore I pray judgement for the plaintiff consider the  effect of every endorsement it do two thing first it assign and transfer the  endorsers right of action against the drawer to the endorsee second it create  a assignment from the endorse that the endorsee shall be satisfy now in common  sense can our recover against the drawer without a satisfaction discharge that  engagement suppose a draw a bill Payable to c for twenty pound direct to I and  another draw another bill for the same sum Payable to c direct to I and each  say the other bill not be pay will a recovery against one without satisfaction  be a bar for the other these be as several bill of exchange suppose a man have  good to sell and a come to he and say that in consideration you will sell  these good to b I will see you pay and I do accord sell they to b and  afterward sue he for those good and recover a judgement will this recovery  without satisfaction excuse a who assume to see I pay or suppose two man do  several promise so to I and I sue either c the form of plead in these case  show the necessity of satisfaction to make a good bar for that in all such  action it be necessary to aver nonpayment it be object shower KB by sir John  holt see cro Middlemore and Goodale Henry cite by sir John holt that if we  have bring our action first against the endorse then we may afterward have  bring a action against the first drawer but that now we can because we have  already saddle he with a judgement I say the drawer be still liable to be sue  by you if you pay we for he shall never take advantage of his own wrong and it  be his own fault not to pay and then he may have have the advantage of such  payment and a man may have two judgement against he for one and the same thing  and be liable to they both through his own default as in case of a executor  who have twenty pound asset and he be sue by two obligors at one time and  plead plene to manage c both shall have judgement for that twenty pound asset  and it be his own fault for he may have pay it to one and have plead that to  the other the Lord chief justice be absent Holloway and wright justice be for  the defendant and Wythens justice come in while they be deliver of their  opinion concur and so judgement be give here for the defendant but it be  afterward reverse in the exchequer Chamber