Majority
p. 98Commercial Bank of Buffalo vs. Love.
Headnote
In separate suits against the maker and endorser of a note, the latter after plea pleaded cannot avail himself of a subsequent paymeht of the note by the maker, by interposing a plea puis darrein ; he can require the plaintiff to proceed to trial upon the plea originally put in, but upon his omission to do so, the plaintiff may discontinue without costs.Leave to discontinue. The defendant was sued as the endorser of a promissory note. He pleaded in bar a judgment on the same note against the maker, the issuing of an execution, and a levy upon property to an amount sufficient to satisfy the plaintiffs. Subsequently the maker paid the debt, and thereupon the defendant pleaded such payment puis darrein, and entered the plaintiff’s default for not replying to such latter plea. The plaintiffs now moved to set aside the default and to strike out the plea puis darrein.
By the Court,
The plea puis darrein is inequitable and unjust, and must be stricken out. If the . defendant wishes to avail himself of any defence existing previous to the payment, he has a right to do so, and if he so elects, the plaintiffs must notice the cause for trial; otherwise they have leave to discontinue without costs.
Rule accordingly.