#### The President, Directors, and Company of the Mechanics’ Bank, in the city of New-York, *against*Thomas Hazard.

in m action on a recognizance °[ea^aUy^gna ®ve‘^"of |“TMu»t1lof id&aie” m~

payment o°ula pleaded?” aithough accepted in full satisiac-

ar^heb1?0U.gjJ't!t3 “otePandiS8?ie íUenfhlboidí that the^S ker shall he pro-benefit of the endorsor, the maker cannot avail bimself of ilre payment by the endorsor a,s a d?fence. TM the suit against

pay. “0er"or>y a|ronil!!en£te", Lta¡bhims°eTof >sint on the reGOSn!“ance'

THIS wás ail action of debt ór á recognizance of bail, *t.*° ■ The, original suit was against John; *Hazard^*on .a .promtssory note, ia Which judgment was 'obtained as of *January*term,, 1812,- for 1,094 dollars And, 8 cents damages and costs.- The defendants pleaded, 1. Payment by-the principal before the commencement of the suit, against the bail, to wit, on the lit’of *■April,*1812. 2. That the plaintiffs recovered their judgment z . a. 7 7.r . _ i ' i n • it against *Jofm Hazard,*as -the maker ot a promissory note dated' the 16 th of *April,*l3ll, payable-sixty days afterdate, to' John*son Patten,*or order, for 987 dollars and, 17 cents, and endorsed by .him to *William G-. Miller;*j.iiri., and by. *Miller'*to the plaintiffs ;, that *Miller,*being liable as such endorsor, afterwards, and before the commencement of this suit, to wit, on the 1 st of *April,*1812, paid and satisfied to the plaintiffs the amount of th'e judgment.. The plaintiffs replied to both pleas, denying th’e facts stated in .them. The - c'aüse was tried before Mr. ’ J. , *\i* xr t*• • j/ .. * , 4 . bpencer, attire *JVezo-x ork*sitt*ins^-^in November, 1815. *1*■ ^ 5 '

, • ' , • . It was proved, that at the time the suit aga-inst *John Hazard 1 . °*Was commenced; suits weie also commenced against *Paiten*7 . ** ,*o and *Miller.*On the 22d of *November,*1811, *Miller*offered his, own note, with an endorsor, at 60 days, for 1,500 dollars, to be discounted by the plaintiffs ; the note Was discounted, 'out of the net proceeds ther'éóf, the plaintiffs, with the consent of *Miller,*retained 3,017 dollars and 31 cents- for-the principal and interest then, due on the note, and agreed with him that the respective suits against *Hazard*’and *Patten*should proceed for his benefit $ the note ..given by *Miller,*after having been once or twice renewed, was paid, *but.Miller*never paid the plaintiffs the costs of the suit Ugainst him, or the costs in. the other suits. Judgments having'been recovered against *Patten*, and *Miller, Patten,*on the 8th of *February,*1812, paid the principal and interest then due on.the'note to the plaintiffs’ attorney, who, by the directions of the plaintiffs; paid’ over the - money to *Miller,*and *Patten*at the same'time paid the costs in the suits against. *354himseli,.. *Miller,*and *Hazard*and it was agreed ■ by the plaintiffs’ attorney, on. the'behalf, cff the plaintiffs:, who-afterwards ra£^e<^'bis act, that, the suit against *3. Hazard*should proceed ^Qr ibe'benelit of *Patien,*and if ii judgment should, not- be perfected' therein, by reason of the ■non-payment -of the costs, which *Hazard*had before been ordered by the court to: pay, ás a condition 'of. being allowed to plead his discharge-under th.e *, ihsdlv-.enl act, puis Hurrein. conlinúance¡*after'an inquest-had been taken against him, and which he had not. yet’ paid, Ahé judgment should be held for the benefit of- *Pdtienj;*or,;' if those costs were’ paid by- *Hazard,*they were to be-repaid to Patien. ’ Judgment was-afterwards, entered.up *against-Hazards*There was never a-ny regular assignment.-oftthe, judgment to *■.Paiten.;*,.büt th.é.-p'resent suit’was prosecuted at;the expense, and.-for the sole, benefit'oi1'- *Patten,*the plaintiffs .haying.-been satisfied the full.amount of the*.principal, and-.interest'due. them, with the costs-of- tiiéir several suits,'. . *1*

-A' verdict was taken, subject to the. opinion of .the court,’ for, the plaintiffs,, for 2Ó.0 .dollars andl¿7 emits, being the'-interest on th'e judgment against *John.*Hazard^"fromthe .time the defendant . b'edame fixed'ás bail, andT'cents-costs. . . . . :- '

*T. A. Emmet,*for the plaintiffs,

contended, 1. That'fh^ parol evidence of the - payment and-satisfaction of .the judgment recovered against-Jote Hazard! was'inadmissible, the judgment bei;ng unpaid and unsatisfied of record. Under neither of the pleascugh.t 'parbl ,'evidence Of Any: payments to-the 'plaintiffs, prior to Jamtáry, 1812, to have bée.róadmitted; Us it would only tend to-' falsify ,th;e judgment obtained, against-. *John*Hazard.And'if the payment was of such a nqture as. -to diminish or ex-1 tipg.uish the demand-,0:f the .plaintiffs, against him!'it ought-to -have been taken ad vantage of .in1 the original, suit.*

2; That; the'defendant equld not.maintain either of -his pleas,by proving, payment :óf a less--sum -than the amount of that judgment and, tile, costs.†

-3.‘.-That the payment madeby *William G. Miller,*jún.,. in pmt disehajg.e of the dema-nd against himself, could not, under the c'ireumgfahces of 'the .c.ase, -b,e- applied'by *-John Hazard*or the defendant,- - towards the puy.ment.'of the judgment against, -the former; -,' . .. -j , ■ ■ ’ ■ ;

. -4; Thá-t' *Miller'*háying;.repaid the amount,. paid by him;to' the: plaintiffs, by *Johns on'Patten^*before judgment ivas perfected *355against *John Hazard, Paiten*was entitled, as against - *Juhii Hazard,*to stand in the place of *Miller,*so as to have the benefit of any agreement he had made with the plaintiffs.*.

5. That *Patten,*by virtue of his agreement with the attorney of the plaintiffs, and of his settlement with Miller, had a right to have the suit then pending against *John Hazard*carried on for his own benefit; and to perfect this right, no assignment of the judgment was necessary, nor could, in fact, any assignment of it have been made, as, at the time of that agreement and settlement, no judgment had been perfected against *John Hazard.*

6. That there can be no impediment to the recovery of the plaintiffs at law; and if there be any questions of equity between the parties affected by, or interested in, that judgment, this court-will leave them to their remedy in a court of chancery.

7. That the defendant cannot stand in a better situation, as bail for *John Hazard,*than the principal hjmself could have done on an execution issued upon thejudgment.

- 8. But, at all events, the plaintiffs are entitled to have the-verdict entered for the amount of tbe costs in the respective-suits against *John Hazard, Miller,*and *Patten.*

*Golden,*and *Drake,*contra,

contended, that the plaintiffs, having taken issue on the fact of payment, were too late to object to the evidence, and ought to have demurred ; and if so, there is an end to the cause; for if the payment is the only issue between thé parties, the defendant must have judgment on the evidence. But it is said, this suit is prosecuted for the benefit of the surety, *Patten.*In order, however, to avail himself of the privilege of a surety, be ought to have averred the fact of suretyship, and put it on record.†' . - -

Under the pleadings in this cause, evidence of the assignment of the judgment in the original suit was wholly inadmissible‡ the issue being only as to the payment, and if admissible . ’ . ~ it was insufficient; if there was any assignment, it was to Miller, 4/07 ‘ ***not to *Patten;*but there was none. This court allow-an assignee . ' . ° to stand in the place of the assignor to preserve a specific lien, but here the plaintiffs attempt greatly to extend that privilege. The plaintiffs could not make an assignment which would put *Patten*in their situation. There was no privity between, the plaintiffs and *John Hazard,*but there was a privity between' *356*Mazará*and Paiten./ ’The plaintiffs .ále endorsees* -The- jbdgif. ment . obtained'- against *P'ailen ipi:.' January, ^*Iff-lSp .and whether docketed of not, .can make not difference,; ..arid' them©.* ney:.wáspaid to th.e plaintiffs after that time.' ■ The note was not payment until -actually:paid,- - Th'e.plaintiffeyrthér.efoféj haying fecéived'full satisfaction; this áu-i’t-e^feqfc^iihai&lalñsú-- iníhei-r names for the benefit *di Pattern*;'From -the meréí'faet'-ofi endorseiperit-.fhe court:.%¥ill-not-'infer-that su^etyshipt which’'vvrihid.'give *■.Patten*this-'peculiaf 'privilege, 1 Baih are 'sureties; :an:d ffntitíbd to all the privileges ff-nd advantages of sureties;*/ In-tKis-fespe'ct;, therefore, the defendant- stands on the' ground of equal equity,, af. least,/with Patten. : ' ’■ ,-/ , ,/ ' • ■ ■ ' ' .

: Again ; the agreements- and arrangements made by the plain? tiffs-, and their attorneys; *with'Miller-*and *Patten,'yviilnoui*the.pri* y-ity or,consent of: the bail, or principal, álteféd' and -extended the responsibility of the.bail, and-thereby'óperated ás'adischa'rge ofthe bail from a, 11 responsibility.†

*Emmet,*'iff .fepljj

said-,-that if the principal had-: paid-the judgment,.it. would -enure .to the.benefit of h-is'sufety ;-bu,t where the payment is collateral only, or by pne of two. spreties, it may* Or may not, according to circumstances, operate to the benefit of the Other, surety. Why may not a surety avail .himself of a Contract, by which he -may- protect himself by “buying in the fights-of a prior creditor ? Will the court consider that as. a payment .which -the parties themselves,did, no.tdnterid as,-a payment? .In regard to the plaintiffs, this is. a case off timst, rather-f-han an assignment, arising ©n the payment of money under a'.specific, agreement.- iff the plaintiffs accepted-the noté as .-payment, at.-the time, it'is not .’competent for another person *t%.*say it was not payment, .. ’ \

*

*9 Johns.*Rep. 392.

†

*9*Johns. *Rep. 333. 2 Lev. 212. Styles, 324.*

*

2 *Johns. Cas. 229, 230, 231. 2 Vern 608. 11 Vessey, 22. Clason v. Morris, 10 Johns. Rep. 524 536. 539.*

†

*1 Chitty's*Pl. 347. 352.

‡

*3 Johns. Rep.*425. 1 Johns. Cas. 411. 7 Term *Rep*690. n. (b) 1 *Bos. & Pulk. 447.*

*

10 *Johns. Rep. 594.*

†

*Ludlaw*v. Simond, 2 *Caines'*Cases *in Error,*1. 1 Ves. 339. 2 *Ves.*569. Rathbones *v.*Warren, 10 Johns. Rep. 587.

-Thompson, .,

'.delivered the opinion Of the court. -This ' Is an action of,debt against the defendant, on his recognizance: of bail for *John, Hazard.*Judgment against the principal was. *obtainedip'Jqmqry*term, 1812,. for i>,094 dollars and 8 cents, .The defendant pleads,,- 1st./Payment,/b.y the principal, of the, -judgment, before the *commencement*of this suit, to wit,'the 1st .of April,-181.2,. 2d, Payment .by *Ppililiam G-. Miller,*who was’ an endorser upon *Johji Hazard's*note, and who had become liable W pay fhfffeaaie^.tlhe tqne-of A,esaitoeias-ifl;.'di^. *357first plea. The plaintiffs take issue upon these pleas ; And the first' qnésíion which arises is, whether the p'r'oof Supports the pleas, or either of them* There is no evidence, !fl atiy manner, showing payment by the, principal. Under the second plea, however,,it appears, that *Miller,*on the 2d of *November,*1811, procured a note to be discounted by the plaintiffs, and that 1,017 dollars and 31 cents of the money was to be applied to the payment of the principal and interest due upon the note,,on which the suit against *John Hazard*was pending^ *Miller's*pote was renewed several times; and when it Was- paid does not appear; probably, not Until after the judgment was obtained against *John Hazard.'*This proof did not support the'plea. It did not show a payment of the full amount of the judgment. Had the plea set out the true sum paid, it would have.been bad on demurrer, and, of course, no defence. And, if so, it follows, of course, that the fact itself is no bar; for, in case of demurrer, the fact is admitted. In the case of *Dederick v. Leman, (9 Johns. Rep,*333.,) it was decided by this cou'rt, that a pleA of payment bf a less sum than was due on a bond, although accepted in full satisfaction, was not good, either as a plea-of payment, or of accord and satisfaction. And, besides, the payment made by *Miller*was before the judgment obtained against *Hazard}*for, although made by *Miller's*note, discounted by the plaintiffs, it was received by them as payment, And* the sum due on *Hazard's*note was, doubtless, passed to *Miller's*credit. The .understanding of *Millet•,*that, if his note was not paid', the plaintiff would have had- a right to retain the money, if any, collected from *JohnHazard,*could not materially affect the transaction. It was a payment at that time, subject, however, to be reimbursed, out of an uncertain fund, Upon the event of the note’s hot be-? ing paid. In strictness, therefore, the facts given'ih evidence do not show a satisfaction of the judgment against *John Hazard.*There was, at all eyents, no payment of the costs due on that; suit: and the next question that arises is,' whether the defendant can avail himself of -that, payment *pro*tanto, and I am inclined to think he cannot. It was not A payment made by, *or!*in behalf of, *John Hazard,*nor of ivhich he could, in any manner, avail himself, and, if he could not,, his bail hannot. '- The payment was made under an express Agreement that-the suit against *John Hazard*should proceed fot the benefit of *Miller,*,|is- endorsor* Had the plaintiffs- remained the real parties to *358the suit, perhaps the defendant might, in some way, in equity certainly, if not' at/law, have availed himself of such payment, according to-what was said by this court in *Wattles v.*Laird, (9 *Johns. Rep.*327.) - But the plaintiffs, by their agreement with’ *Miller,,*became mere nominal parties; and we have a.right so to. consider-them, and look-at, and protect-, the real, parties fn ihr terest.. All1 considerations of hardship -must be. laid' Out of view.' They apply with- as much force to the endorsors of *JohnHazard*as to Ins bail: and when a-loss must fall upon One of /two . innocent persons, each has a right to clainf protection under whatever strifct and rigid rules Of law are to be- found .in his -fávour: and according to which the plaintiffs are, in my Opinion, entitled to recover, the full amount of the'judgment andinterést-i and this is /the opinion of the. court. ■- ■■ . . ■ ' '

-Judgment'for.; the plaintiils,,':