#### William Porter *versus*Joseph H. Ingraham.

Where the endorsee of a promissory note had recovered judgment against the two promisors, and one of them had been committed in execution, he was holden to be still entitled to his action against the endorser, notwithstanding tire jailer, after liberating the prisoner, had received the amount of the judgment, and had tendered it to the assignee of the judgment

Assumpsit on a promissory note signed by *James M. Ingraham*and *John*Goold, on the 18th of November, 1809, payable to the defendant or order, and by him duly endorsed to the plaintiff, for the sum of 225 dollars, payable in one year with interest.

Trial was had upon the general issue at the last October term in this county, before Thatcher, J.

The plaintiff, to maintain the issue on his part, read the note in evidence, and proved a demand on the promisors when the same became due, and seasonable notice to the defendant of the nonpayment by the promisors.

The defendant read a judgment of the Common Pleas, June term, 1811, recovered by the now plaintiff against the promisors in the note in question, for 261 dollars, debt and costs, and proved that execution issued upon that judgment on the 28th of June, 1811; that, by virtue of that execution, *J. M. Ingraham*was commited to jail on the 28th of September following; that the execution was' duly returned, without any other satisfaction than the commitment aforesaid; that, after the return of said execution, an *alias*and *plu**101*ries*execution issued against *Goold,*the other debtor, and the goods and estate of the said *Ingraham,*which has not been satisfied.

On the 19th of September, 1812, the keeper of the jail, upon the undertaking of one *Brooks*to pay the amount * of the said execution, released *Ingraham,*from his con- [ * 89 J finement, and afterwards offered the money he had received to one *Richardson,*the assignee of the said judgment, who declined accepting it, suggesting that it might prevent his recovery of costs in another action, which was then pending.

Upon this evidence the defendant claimed a verdict, insisting that the judgment against the promisors was satisfied, and himself thus exonerated.

But the judge, who sat in the trial, instructed the jury, that the facts so proved did not amount to a satisfaction of the said judgment against the makers of the note, and that they ought to find a verdict for the original sum due by the note, and interest to the time that the jailer offered to pay the amount of the execution to the assignee of the judgment; and they found accordingly.

The defendant excepted to the said direction, and the cause was continued to this term, for the consideration of the said exceptions

*Storer,*in support of the exceptions,

cited and relied on the case of *Gilmore*vs. *Carr,*(1) to show that the plaintiff’s judgment against the promisor had been satisfied, and therefore that he could not maintain this action against the -endorser. (2)

*Todd*for the plaintiff.

If this action cannot be maintained, the plaintiff loses the interest of his money, which he is entitled to recover from any party to the note. The holder of a note may sue all the parties liable, and may have judgment against them all. It is at his own peril, if he takes more than one satisfaction in the whole. (3)

(1)

2 *Mass. Rep.*171.

(2)

*Bac. Abr., Execution,*D., cites *Cro. Eliz.*209.—2 *Mod.*214.

(3)

*Kyd.*198.

Sew all, J.,

delivered the opinion of the Court.

The defendant relies on the decision of this Court in the case of *Gilmore*vs. *Carr.*There, separate actions having been commenced by the endorsee of a negotiable note, against the promisor and endorser, a judgment recovered against the endorser, and execution thereon returned satisfied, was considered as a defence in the action against the promisor; and he recovered a judgment for costs against * the plaintiff. That decision [ * 90 ] recognizes a practice essentially variant from the *English*practice, and from what is said to be the practice in *Pennsylvania.*(4)

*102Where separate actions are justifiably commenced against parties severally liable in one contract, the plaintiff, according to the *English*practice, is entitled to a judgment in each action, unless prevented by a satisfaction of the debt and a payment of all costs; and after the debt has been paid in one action, he may have execution for costs on his other judgments. In our practice, the right of the creditor to commence separate actions is fully recognized. If, however, we adhere to the decision in the case of *Gilmore*vs. *Carr,*the plaintiff proceeds at the risk of costs — not only of the loss of his own costs, but of paying costs, when he receives satisfaction in one suit before judgments are recovered in the other suits.

If the decision referred to had been in a case not distinguishable from the case at bar, in any essential circumstances, we should be disposed to consider it as an authority by which this case must be also decided. At least, we should not overrule it without taking further time for consideration. In the case of *Gilmore*vs. *Carr,*the plaintiff’s judgment in his suit against the endorser had been satisfied; but in the case before us there has been no satisfaction, that is, no valuable satisfaction, in a payment accepted, either by the plaintiff, or by any person authorized to receive payment, and to discharge the plaintiff’s demands.

The person of a debtor, taken in execution, and imprisoned, is pledge for the debt, but not a satisfaction of it; except that, under some circumstances, it may operate as a satisfaction, so far as the party imprisoned is liable, but not as a discharge of any other party liable with him. (5)

The other facts stated in the exceptions, respecting the negotiation between the jailer and *James M. Ingraham,*while he was in prison upon the plaintiff’s execution against him and *Goold,*the promisors in the note now sued against *Joseph II. Ingra-*[ * 91 ] *ham,*the endorser, are wholly irrelevant. * The jailer acted without authority, and beside his duty, and, indeed, in violation of it; and the plaintiff in this action is not concluded by any thing done upon the executions sued out against *James M Ingraham*and *Goold.*

We entirely concur in the opinion given at the trial. The exceptions are overruled, and judgment is to be entered according to the verdict, *(a)*

ADDITIONAL NOTE.

(The maker of a note, being sued by the holder, and imprisoned upon execution *103was afterwards, and during such imprisonment, sued by the indorser, who had paid the note. Held, the action would lie.— *Cole*vs. *Cushings*8 *Pick.*48.

See Bank, &c., vs. Tyler, 4 *Pet.*366. — *Couch*vs. Waring, 9 *Conn.*261. — *Tucker*vs. Pruett, 4 *Yerg.*553. — *Hanna*vs. *Pegg,*1 *Black.*182. — *Abercrombie*vs. Knox, 3 *Alab.*728. *—Jay*vs. *Sandersont*6 *Port.*420.— F. H.]

(4)

*Chitty on Bills,*254, *American*edition, *in notis.*

(5)

**5 *Co.*86. — 2 *Show.*394.—2 *Black. Rep.*1235. — *Chitty,*254.

(a)

 [See *Chitty,*4th ed. p. 346, 7, and eases there cited. There seems to be no good reason to support the decision in *Gilmore*vs. *Carr.*— Ed.]