Claxton v Swift
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1794 |
| Date | 01 January 1794 |
| Court | Court of the King's Bench |
English Reports Citation: 87 E.R. 55
IN THE COURT KING'S BENCH, CHANCERY, COMMON PLEAS, EXCHEQUER.
See Brinsmead v. Harrison, 1872, L. R. 7 C. P. 550.
[86] case 47. claxton ayainst swift. Hilary Term, 1 Jac. 2, Roll 1163. [See Srinsmead v. Harrison, 1872, L. R. 7 C. P. 550.] If the indorsee of a bill, on default of payment by the acceptor, recover against the drawer, but do not take out execution, this recovery cannot be pleaded in bar to a second action on the same bill, by the same indorsee, against the first indorser ò for although the 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. 9 Mod. 60. 10 Mod. 109. 11 Mod. 190. 12 Mod. 36, 87, 192, 521. Comyns, 311. 1 Ld. Ray. 181, 442, 743, 753. 2 Ld. Ray. 1545. 1 Stra. 214, 441, 478, 515, 557, 648. 2 Stra. 733, 792, 817, 940, 1000, 1051, 1195, 1246. Dougl. 250. 1 Term Rep. 167. 4 Term Rep. 691. H. Bl. Rep. 89, notis. The plaintiff, being a merchant, brought an action upon a bill of exchange, setting forth the custom of merchants, &c., and that London and Worcester were ancient cities, and that there was a custom amongst merchants, that if any person living in Worcester draw a bill upon another in London, and if this bill be accepted and indorsed, the first indorser is liable to the payment : that one Hughes drew a bill of a hundred pounds upon Mr. Pardoe, payable to the defendant or order. Mr. Swift indorsed this bill to Allen or order, and Allen indorsed it to Claxton. The money not being paid, Claxfcon brings his action against Hughes, and recovers, but did not take out execution. Afterwards he sued Mr. Swift, who was the first indorser; and he pleads the first recovery against Hughes in bar to this action, and avers that it was for the same bill, and that they were the same parties. To this plea the plaintiff demurred, and the defendant joined iti the demurrer. Mr. Pollexfen argued that it was a good bar; because the plaintiff had his election to bring his action against either of the iudorsers or against the drawer, but not against all; and that he had now determined his election by suing the drawer, and shall not go back again, though he never have execution ; for this is not in the nature of a joint action, which may be brought against all. It is true, that it may be made joint or several by the plaintiff; but when he has made his choice by suing of one, he shall never sue the rest, because the action founds in damages, which are uncertain before the judgment, but afterwards are made certain, et Imnseunt in rem judicatam, and is as effectual in law as a release; as in trover the defendant pleaded, that at another time the plaintiff had recovered against another person for the same goods so much damages, and had the defendant in execution; and upon a demurrer this was held a good plea (a); for though in that case it was objected, that a judgment and execution was no satisfaction unless the money was paid, yet it was adjudged that the cause of action being againat several, for which damages [87] were to be recovered, and because a sum certain was recovered against one, that is a good discharge against all the other; but it is otherwise in debt, because each is liable to the entire sum. The Chief Justice. If the plaintiff had accepted of a bond from the first drawer in satisfaction of this money, it had been a good bar to any action which might have been brought against the other indorsers for the same; and as this case is, the drawer (a) See Cro. Car. 79. Garth. 69, and the case of Fairley v. Mac Cmnel, 1 Burr, 514. (4) 1 Mod. 195. Garth. 59. 2 Cromp. Pract. 419. Tidd's Pract. 178. (a) Brown v. Woottm, Cro. Jac. 73. Yelv. 65. 2 Ld. Ray. 1217. 56 MICHAELMAS TERM, 1 AND 2 JAC. 2. IN B. R. 3 MOD. 88. is still liable ; and if he fail in payment, the first indorser is chargeable, because if he make indorsement upon a bad bill, it is equity and good conscience that the indorsee may resort to him to make it good. But the other justices being against the opinion of the Chief Justice, judgment was given for the defendant (b).
English Reports Citation: 89 E.R. 1030
IN THE COURTS OF KING'S BENCH
1030 MICHAELMAS TERM, 1 JAC. 2. IN B. R. 2 SHOW. K. B. 442. case 396. claxton against swift. Hilary Term, 36 & 37 Car. 2, Eoll 1163. If the indorsee of a bill of exchange, on default of payment by the acceptor, recover against the drawer, but do not take out execution, this recovery cannot be pleaded in bar to a second action on the same bill by the same indorsee against the last indorser ; for although he recovered damages in the first action, he did not receive satisfaction. Case on the custom of merchants on a bill of exchange brought by the plaintiff, being the indorsee, against the defendant as the last indorser, who pleads that the plaintiff has sued and recovered against the original drawer, which judgment is in force ; the plaintiff demurs. Mr. Thompson for the plaintiff argued, that the plaintiff has his election to sue the drawer or the indorser, and is not concluded till satisfaction : besides, we have laid another custom than that against the drawer, so as they are distinct. In the suit which they have pleaded, there was likewise an indebitatus assumpsit and entire damages given, so that it can be [442] no answer to ours. It is a recovery for more, and consequently not for the same thing. Mr. Pollexfen e contra. It is the same bill of exchange, and the indebitatus cannot hurt, for this would have been a good plea for the same party. Then as to the objection of its being another custom, it is true, they are several customs, but yet surely a satisfaction by one of them would be a bar. And as to the merits, it is true, he has his election; but by thus bringing his action he...
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