Harrison v. Wood. a subsequent action between the same parties for the same cause of action. The plaintiff had an opportunity to litigate his difficulty with the defendant in a tribunal of his own selection, and the judgment of that tribunal should be, and is, final and conclusive upon all matters that could have been litigated in that action. If the plaintiff chose another court in which to try his cause of action, he should have voluntarily withdrawn his action in the Supreme Court, and not suffered the judgment of the court to be rendered against him. The counsel cited Le Guen v. Gouverneur, 1 John Ca. 492. Ogsbury v. Lafarge, 2 Comst. 113. Brown v. Embury, 3 Comst. 511. J. Edgar, for the plaintiff, contended that I. The disposal of the former suit was not such as to determine the rights of the parties. 1. The dismissal of the complaint in that suit was by an order upon motion, which did not operate as a verdict and judgment to conclude the rights of the parties. (3 Code Reporter, 241 and 37. 5 Pr. Rep., p. 30.) 2. The judgment in the first case must be viewed in the same light with a judgment as in case of nonsuit. (6 Pr. Rep., p. 218.) 3. The determination of the first action was equivalent to a nonsuit; and the costs, in that case, were paid before a second action was commenced. II. To bar a recovery in a second action for the same cause, it must appear not only that the same questions were in issue in a former suit, but also that they were distinctly considered and passed upon in such suit. (Wood v. Jackson, 8 Wendell, p. 35. Lawrence v. Hunt, 10 Id. 84. Young v. Rummell, 2 Hill. 481. McKnight v. Dunlop, 4 Bar. Su. Rep. 36. Quackenbush v. Ehle, 5 Id. 469.) III. There is no evidence that the facts of the case had ever previously been passed upon, or in question before a court or jury. IV. The judgment should be affirmed, with costs. BY THE COURT.-The dismissal of a complaint under the Williams v. Storm. Code, in an action at law, we are clearly of opinion has no other effect than that of a nonsuit under the former practice. There is a change of name, and nothing more. The Chief Justice was therefore correct in holding that the judgment in the former action which was relied on as a defence, was no bar to the plaintiff's recovery. Whether an absolute bar may not be created by the dismissal of the complaint, when no other than equitable relief is sought, and the cause has been heard at special term, is a different question, upon which we are not to be understood as intimating any opinion. The judgment must be affirmed, with costs. WILLIAMS V. STORM impleaded with AUSTIN and others. Notes, having no previous inception, if discounted at more than 7 per cent. per annum, are void for usury. The accommodation endorsers of such paper are not liable, although the last endorser may have endorsed it, on the understanding that the proceeds should be used to take up acceptances which he had made for the makers, and which it was the duty of the latter to pay. (Before DUER, CAMPBELL, and EMMET, J.J.) February 18; February 26. THE action was brought to recover against the defendant, Storm, as first endorser, the amount of five promissory notes, made by a corporation named the Empire Mills, dated December 10th, 1850, payable to the defendant or order six months after date, and amounting in the aggregate to $10,000. The second endorsers, the other defendants, were the persons composing the mercantile firm of Austins & Spicer, and had suffered judgment to be taken against them by default. The defence set up by Storm, in his answer, was, that the notes were endorsed both by himself, and Austins & Spicer, at the request of and for the accommodation of the makers, the Empire Mills, and when so endorsed were owned and possessed by and had not been put in circulation by the makers; that when the notes so endorsed were first put in circulation, they Williams v. Storm. were negotiated and delivered by the Empire Mills to the mercantile firm of Wright & Titus, who discounted the same at the rate of more than seven, and at the rate of 12 per cent. per annum. The answer therefore insisted that the notes and the endorsements thereon were usurious and void in their inception. The reply took issue upon the matters set forth in the defence. The issues were brought to a trial before Mr. Justice SANDFORD and a jury, on the 24th of May, 1852, when Edwin C. Hamilton, a witness for the defendant, Isaac T. Storm, testified as follows: In 1850 I transacted business in the city of New York, and was the Treasurer of the Empire Mills, which was a manufacturing corporation, located in the county of Oneida, in this State. The five notes in question in this action were made by the said Empire Mills. I filled up and signed them as such Treasurer. I called upon the defendant, Storm, and he endorsed the said five notes at my request, for and on account of the Empire Mills, and for their accommodation; the notes remaining in my hands for the use of the corporation; I knew the firm of Austins & Spicer; that firm transacted an auction and commission business in the city of New York, in and prior to 1850, and consisted of the other defendants in this action; I called upon the said Austins & Spicer, and they also endorsed the said five notes with their said firm name, at my request, for and on account of the said Empire Mills, and for their accommodation; the notes remaining in my hands for the use of the corporation. Both of said endorsements were made in the city of New York, and the agreement both with Mr. Storm and with Austins & Spicer was, that if the said notes were used or put in circulation, the said Empire Mills should provide for and pay them at maturity. I then negotiated with Messrs. Wright & Titus, of Wall street, that they should buy from me a lot of negotiable promissory notes, amounting in the whole to fifty or seventyfive thousand dollars; I do not just now remember which sum -at a rate agreed upon; they agreed to take the paper, deducting from the whole amount of the said paper interest, or discount. at the rate of 12 per cent. per annum, for the time Williams v. Storm. the paper had to run before maturity, and also a quarter of one per cent. upon the whole amount, by way of a brokerage fee on the transaction, as if they had sold the paper for account of the Empire Mills; they took the paper in that way: I handed them the paper, amounting to fifty or seventy-five thousand dollars; they paid me about two-thirds of the money down, and within four or five days after, rendered me an account according to the agreement, deducting discount at the rate of twelve per cent. per annum on the amount for the time the paper had to run, and the quarter per cent. brokerage, and paid me the balance. The five notes in question were part of this lot of paper so disposed of to Wright & Titus; all the said paper was of the said character; it was all accommodation paper; this transaction was for and on account of the Empire Mills, and I applied to their use the money so received from Wright & Titus; this transaction with Wright & Titus took place early in December, 1850, soon after the date of the said five notes. On cross-examination, this witness testified as follows:These five notes were procured by me on behalf of the Empire Mills; my duties as treasurer of the Empire Mills were defined by the by-laws; in procuring the endorsements, I negotiated with the parties personally; I also conducted the negotiations with Wright & Titus personally; in purchasing the paper, Wright & Titus did not state that they purchased for any other person. The witness, in answer to an enquiry of the court, why the notes in question were said on their face to be on account of wool, testified that, about twelve months previously, a large amount of wool had been consigned by the Empire Mills to Austins & Spicer, for which they had accepted; these notes were on that account; it was stated to Wright & Titus, at the time of the negotiation, that these notes were made to reimburse Austins & Spicer. The counsel for the defendant, Isaak T. Storms, further pursued the direct examination of this witness, and he testified as follows: The Empire Mills originally consigned to Austins & Spicer, for sale on their account, on commission, a large quantity of wool, amounting in value to $750,000; the Empire Williams v. Storm. Mills drew upon Austins & Spicer, who accepted their drafts for their accommodation, based upon and in anticipation of the proceeds of the sale of said wool; I received those accepted drafts, and negotiated them for the Empire Mills; in the course of about six months, Austins & Spicer had sold about twothirds of the wool; they were then ordered to sell no more; they were ordered to charge the balance in account, as if upon a sale to the Empire Mills, and three other mills connected with them; Austins & Spicer, however, to keep the wool until required by the Mills for manufacturing purposes, and we, the Empire Mills, undertook to keep them în funds, so as to prevent their being obliged to pay out cash upon their outstanding acceptances; the wool never belonged to Austins & Spicer; Austins & Spicer rendered the account of this assumed sale of the wool and agreed to give us, the Empire Mills, their name in any way we required, as endorsers or acceptors, we to keep them in funds, so that they should not be in advance for cash paid out; in pursuance of that arrangement, the Empire Mills took the wool out of the hands of Austins & Spicer, from time to time, as needed, during a period of about six months; also, as their paper matured, we took their name upon fresh paper, negotiated it in the market, and paid over the proceeds to them, as agreed, in time to keep them from being in advance; we paid Austins & Spicer a commission of two and a half per cent. on the amount of all paper on which they so put their name; the paper varied in the length of time it had to runfrom four to six months; in this way, the balance of the origi nal acceptances, beyond what was realized by Austins & Spicer from the actual sale of the wool, was renewed several times; all the renewals prior to the transaction with Wright & Titus, were effected by paper, on which Austins & Spicer were acceptors, and the persons primarily liable and the proper persons to have the money to take up the paper when it fell due; this was the only instance in which notes were made; this transaction with Wright & Titus was about ten days before the acceptances of Austins & Spicer, then outstanding, became due; the object was to obtain money to take up those acceptances about to mature-it was another renewal of that transaction, and was in no way connected with any other; most of |