Austin v. Bemiss — 8 Johns. 356

Majority

p. 356

Austin against Bemiss, jun. and Follet. Same against Bemiss.

Headnote

Where separate agábs^the “ma kermú^endorsor mentf Recover-b’entltled to'th!! suitS The statute (sess. 24 c. 90. s. 14.) does not apply to this case.

AT the last February term, the plaintiff, Austin, sued David Bemiss, jun. and Otis Follet, and David Bemiss, in twQ separate actions, on a promissory note, dated 11th No-member, 1808; the former as makers, and the latter as endorsor of the same note. The proceedings in each suit were separate, and judgments taken in each, separately, by cognovit actionem. The question presented on these facts ... was, whether the plaintiff could recover costs m both . . , suits, or m one only.

The plaintiff is entitled to the costs of each suit, (l Str. 515.) The statute allowing a recovery of costs in one suit only, when several suits are brought upon the same instrument, does not apply to this case, but to cases in which separate suits are brought upon the same note or bond, when one suit would have served. Here the suits against the maker and endorsar were necessarily distinct, and could not have been consolidated, for they were distinct contracts. The observation in 1 Johns. Rep. 293 .^[1] intimating that costs in

(a) (a) Livingston against Bishop. In Gilmore v. Carr, in the supreme court of Massachusetts, ( 2 Mass. Rep. 171 .) it was decided, that where the endorsee had recovered judgment *357 and satisfaction of the endorsor of a note, he could not have his costs in a suit previously commenced against the maker, In Tarin v. orris, (2 Dallas, 115.) in the supreme court of Pennsylvania, it was decided, that though but one satisfaction can be recovered, yet that execution may issue in all the actions against the several parties to a promissory note; and whtre a judgement had been obtained for the debt and costs against the drawer, the court allowed judgment to be entered against the endorser, in the suit against him. for the costs.

p. 357

both suits were not recoverable in a case like this, must have arisen from some inadvertence, for no such idea was ever entertained by any member of the court.