Claxton and Swift
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1728 |
| Date | 01 January 1728 |
| Court | Court of the King's Bench |
English Reports Citation: 90 E.R. 116
IN THE COURT OF KING'S BENCH
3. claxton and swift. The plaintiff brought an action sur case against the defendant, and declared upon the endorsement of a bill of exchange; the defendant pleads, that the plaintiff had brought his action against Hughes the drawer, and had judgment against him and upon this the plaintiff demurred. And it was argued, that this is not a plea in bar of this action, because it does not answer or avoid the charge of the declaration, which is, that he had endorsed this bill to the plaintiff, and by it made himself subject to the payment, if the drawer did not pay it; and it is laid in the declaration that the money is not paid, and then though there is a recovery, yet this is not a bar to the plaintiff, for this endorsement is as a new bill, and a new contract, and is 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 indorsement only an action upon the case lies upon the special custom of merchants, but against the drawer an indebitabus assumpsit lies upon the debt created by the law; and so the contract being several, and of a several nature, a recovery upon one, is not a bar without satisfaction, no more than in the case of a bond; for though this contract is not of a nature so high as a bond, yet it is of the same nature, for the one is verbal, and the other a verbal contract put into writing, and turned into a deed ; and if the deliverer when he parts with his money will demand, if the person upon whom the bail is drawn will not pay, what then 1 the drawer and natural equity will answer, that the drawer will; and in this case the indorser is in the nature of a drawer, and is regarded as a drawer, for if there are good indorsers, it is not usual to regard the drawer, because they are all liable till the bill is paid; and as to the case of Brmm and Wootm, Trin. 30 Jac. E. B. Cr. 73. Yelv. 67, and [256] Moor 762, it was said, that there the case was founded upon a tort, and damages only to be recovered; which after having been reduced to a certainty by a judgment, are of another nature, and become a duty certain, for which there is no remedy, but an action of debt, or execution upon the judgment; but here the action is grounded upon a debt, which was always certain; and he said, that if one comes with J. S. to SKINNEB, 2B7. TERM. MICH. 2 JAC. 2. R. B. 117 a draper, and say...
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Claxton v Swift
...indorsee has recovered damages, he has not received satisfaction.- S. C. 1 Lutw. 878. S. C. Nel. Lut. 270. S. C. 2 Show. 441, 494. S. C. Skin. 255. Yelv. 68. 1 Leon. 19. 3 Leon. 122. Cro. Jac. 73, 284. Latch, 124. Cro. Car. 75. Bunb. 199. Lutw. 880. 8 Mod. 43, 166, 242, 295, 307, 362, 373. ......
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Carter against Downish
...afterwards tendered in the house of Aylwin, the three hundred pounds residue, which was refused. Et hoc paratus est (b) 2 Show. 441, 494. Skin. 255. 3 Mod. 86. 1 Lutw. 878. (c) Yelv. 74. Noy. 129. Cro. Jac, 206. l SHOW. K. B.129. MICHAELMAS TERM, 2 WILLIAM AND MARY. IN B. R. 493 verificare,......