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it shall be a satisfaction of the note, it will be so, although he afterwards transfers them for less than the amount of the note.1 And, where the holder agrees to accept an interest in a claim of the maker against the United States government, an actual transfer of such interest will not be necessary to a complete satisfaction.134 Where the maker's debt was assumed by A., and A.'s receipt for a government bond taken in satisfaction, to be delivered to him on demand, it was held to be a full satisfaction, although A. afterwards became insolvent, and never delivered the bond.135 But an executory agreement to give a bond and mortgage will not be a satisfaction, if it is not performed.186 Neither is a verbal agreement on the holder's part, to receive a debt due to the acceptor from another, of itself sufficient; 137 nor a promise, without other consideration, to accept Confederate notes in payment.138 And, in general, an agreement, to be a satisfaction and substitute for payment, must be strictly performed.139 And if the maker claims to have satisfied a bill by a delivery of goods, which have been so received, it must be specially averred, and cannot be properly shown under a plea of payment.140

Merger in Judgment.

§ 1828. In general, a judgment merges a bill or note, as between the parties to it.141 If a judgment has been recovered and satisfied by an attorney, whatever the consideration may be, no further ac

133 Samples v. Samples, 2 N. M. 239.

134 Whitney v. Cook, 53 Miss. 551.

135 Colgrove v. Tallman, 2 Lans. (N. Y.) 97.

136 Overton v. Harvey, 9 C. B. 324.

137 Kemp v. Watt, 15 Mees. & W. 672.

138 Lewis v. Davisson, 29 Grat. (Va.) 216.

139 Strickland v. Lee, 65 Md. 384, 4 Atl. 884. So, where a note is given for the actual debt conditioned for a release on payment of a smaller sum. Waggoner v. Cox, 40 Ohio St. 539. And see, as to a subsequent unperformed agreement to sell goods and receive the note in payment, Hayes v. Allen, 160 Mass. 286, 35 N. E. 852.

140 Ulsch v. Muller, 143 Mass. 379, 9 N. E. 736.

141 Byles, Bills, 239; Eldred v. Insurance Bank, 17 Wall. 545; Woodworth v. Spafford, 2 McLean, 168, Fed. Cas. No. 18,020. And such judgment destroys its negotiable quality. Brown v. Foster, 4 Ala. 282. But a judgment

tion will lie on the note.142 And, where judgment has been rendered on a note, a second judgment cannot be had in another district.143 But a warrant of attorney to confess judgment is no merger, until judgment is actually entered.144 And an action upon a note will not be barred by judgment rendered on the same note in an attachment suit, if there has been no appearance and no personal judgment; nor by judgment against others as co-makers in another state, having no jurisdiction over the defendant; 146 nor by judg ment against a corporation on a note executed by its officers, in an action to enforce their individual liability.1*

145

147

If a note is given to secure certain fines and penalties, a judg ment once entered upon it and paid will be a bar to further action on the note for subsequent fines.148 And, where several notes are given for different installments, suit upon one may be barred by a judgment rendered on the other, upon a defense which is necessarily good as to all if good as to one.149

But a confession of judgment, in favor of the payee after transfer, will not bar an action by the indorsee.150 And, if several notes are held as collateral for a debt, a judgment rendered on one of them,

fraudulently confessed by the defendant, without plaintiff's authority, in plaintiff's favor, for use of defendant, is no defense. Mount v. Scholes, 120 Ill. 394, 11 N. E. 401.

142 Fogg v. Sanborn, 48 Me. 432. But, if an indorser pays a judgment rendered against him and the maker, he may set up the note against a claim made by the maker's assignee. Kelsey v. Bradbury, 21 Barb. (N. Y.) 531. 143 Schuler v. Israel, 27 Fed. 851. And suit pending in a state court is no defense to an action brought in the United States court. Hyde v. Stone, 20 How. 170.

144 Byles, Bills, 239; Chit. Bills, 200; Norris v. Aylett, 2 Camp. 329.

145 Smith v. Curtiss, 38 Mich. 393. So, an attachment not yet in judgment. Wilson v. Bank, 45 Pa. St. 488.

146 Stone v. Wainwright, 147 Mass. 201, 17 N. E. 301.

147 First Nat. Bank of Brooklyn v. Wallis, 150 N. Y. 455, 44 N. E. 1038, affirming 84 Hun, 376, 32 N. Y. Supp. 382.

148 Siddall v. Rawcliffe, 1 Cromp. & M. 487, 1 Moody & R. 263. So, where an accommodation indorsement for the maker is transferred to secure his debt to A., a judgment rendered on it against the indorser at the suit of A. bars recovery by B., although the maker and A. had agreed that it should secure B. also. Erwin v. Lynn, 16 Ohio St. 539.

149 Cleveland v. Creviston, 93 Ind. 31.

150 Bank of Montreal v. Douglas, 17 U. C. Q. B. 208.

although it is collectible, will be no bar to an action on the others.151 If judgment is rendered on a collateral note, and, after being collected in part, is assigned to the debtor, it will be a satisfaction of the debt to the extent of the amount collected, and no more.1 152 So, the foreclosure of a collateral mortgage will not extinguish the holder's right to bring suit on the note secured.153

Judgment against Prior Parties.

§ 1829. A judgment rendered on an account is no defense to a note subsequently given for it.154 So, if judgment is rendered on a note secured by mortgage, and it is paid by the maker, it will be no bar to a subsequent action in equity for subrogation to the mortgage, as against intervening claims.155 If, in consideration of the discount of a bill, the drawer agrees to pay a certain sum monthly, as interest after maturity, if the bill is not paid at maturity, a recovery on such agreement will be barred, as to interest before or after maturity, by a judgment on the bill.156 But where a holder has recovered interest on a note, it will be no bar to a subsequent action for the principal, which had not then matured.157

A party to a bill or note is not discharged by judgment on it in favor of subsequent parties.158 So, a judgment on a note against one party will not extinguish it as against other parties, either prior

151 Smith v. Hunter, 33 Ind. 106. So, judgment on a note for the debt is no bar to action on a collateral note. Burnham v. Windram, 164 Mass. 313,

41 N. E. 305. And see § 1590, supra.

152 Burnheimer v. Hart, 27 Iowa, 19.

153 Vance v. English, 78 Ind. 80. So, conversely, judgment on the note secured is no discharge of the collateral. Fisher v. Fisher, 98 Mass. 303. But a foreclosure sale to the holder under a collateral mortgage has been held to satisfy the notes, although made subject to unmatured installments on the notes. Shermer v. Merrill, 33 Mich. 284.

154 Clark v. Young, 1 Cranch, 181.

155 Orrick v. Durham, 79 Mo. 174.

156 Florence v. Jennings, 2 C. B. (N. S.) 454.

157 Andover Sav. Bank v. Adams, 1 Allen (Mass.) 28. And see § 1589, supra.

158 Byles, Bills, 239; Tarleton v. Allhusen, 2 Adol. & E. 32. At the suit of a purchaser after maturity without notice. McLennan v. McMonies, 23 U. C. Q. B. 114.

or subsequent.159 So, a decree in favor of the payee of a check, against the drawee, will be no defense to an action brought by the drawer, if it has not been paid.160 If the drawer of a bill gives his warrant of attorney to confess judgment, it will be no discharge of an accommodation acceptor.161 So, a judgment and execution against the maker of a note, stayed by interpleader, is no bar to an action against the indorser.1

162

Judgment against Joint Debtors.

§ 1830. A judgment against one joint acceptor or joint maker discharges the others.163 But a court of equity may grant relief on the ground of mistake.164 If one of several joint debtors gives his individual bill for part of the amount, judgment rendered on it will be no bar to an action on the joint debt against all.165 And a judgment against one joint debtor is no defense as to the other, where it is rendered against the sole survivor, or against all who reside within the jurisdiction.166 And the mere allowance of a note by the administrator of a deceased joint maker is not a merger, and cannot be pleaded as a former recovery in an action brought against the estate of the other.167 So, if a judgment against one joint maker is afterwards set aside, it will not be available to extinguish the debt of the other.168 So, a judgment rendered in favor of one maker on his separate defense, and afterwards reversed on appeal, is not subject, upon a new trial, to the defense of a judgment rendered mean

159 Byles, Bills, 239; Claxton v. Swift, 2 Show. 441. 160 Schuler v. Israel, 27 Fed. 851.

161 Smith v. Knox, 3 Esp. 46.

162 Rice v. Groff, 58 Pa. St. 116.

163 Byles, Bills, 239; King v. Hoare, 13 Mees. & W. 494; Mason v. Eldred, 6 Wall. 231; Ward v. Johnson, 13 Mass. 148; Farwell v. Hilliard, 3 N. H. 318; Odell v. Carpenter, 71 Ind. 463; Archer v. Heiman, 21 Ind. 29. So, a judgment by confession taken under the New York Code. Candee v. Smith, 93 N. Y. 349.

164 Hollowell v. Macdonell, 8 U. C. C. P. 21.

165 Chit. Bills, 200; Drake v. Mitchell, 3 East, 251.

166 Cox V. Maddux, 72 Ind. 206.

167 Fiscus v. Robbins, 60 Ind. 100.

168 Maghee v. Collins, 27 Ind. 83.

while against the other maker. 169 And where a party buys goods and gives a note in his own name, a judgment rendered against him will bar a suit against secret partners afterwards discovered.170 So, if a judgment is rendered against one joint and several acceptor or maker, it will be no defense as to the other.171 But a joint judgment on a joint and several note exhausts the holder's right of election, and merges the note.172

. Discharge by Execution.

173

§ 1831. An execution, or a release from execution, against property, is not a discharge, except between the immediate parties to it.1 And this is true, also, of an execution against the body.174 Thus, if an execution is issued against the body of the maker, and he is released by the jailer on a part payment, refused by the holder, after action brought against the indorser, the latter will not be discharged by such payment.175 So, if the acceptor is discharged from an execution in favor of the indorsee, it will not discharge him as to the drawer. 176 And the note of A., taken as collateral for B.'s debt, will not be discharged by the imprisonment of B. on a capias, although the note was fraudulently collected by the creditor's agent, and misappropriated to a debt due from the creditor to himself.177

169 Lawrence v. Sample, 97 Ind. 53. 170 In re Herrick, 13 N. B. R. 312, Fed. Cas. No. 6,420. Where the note was executed in the individual name. Smith v. Black, 9 Serg. & R. (Pa.) 142. Or even in a firm name, which did not disclose the individual partners. Robertson v. Smith, 18 Johns. (N. Y.) 459. A contrary decision in Sheehy v. Mandeville, 6 Cranch, 253, being overruled by Mason v. Eldred, 6 Wall. 231. 171 Byles, Bills, 239; Giles v. Canary, 99 Ind. 116. So, judgment on a cognovit against one joint and several maker will not discharge the other. Ayrey v. Davenport, 2 Bos. & P. 474.

172 Baker v. Kinsey, 41 Ohio St. 403.

178 Pole v. Ford, 2 Chit. 125. And see § 1842, infra.

174 Hayling v. Mulhall, 2 W. Bl. 1235. But such discharge has been held to release the other joint maker also. Hyde v. Long, 4 Vt. 531.

175 Porter v. Ingraham, 10 Mass. 88.

176 Macdonald v. Bovington, 4 Term R. 825.

177 Morse v. Woods, 5 N. H. 297.

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