
    No. 602.
    Charles McNabb v. Martin Tally and Duncan.
    A bill was drawn by A. Flournoy to bis own order upon. Thurmond and Hicks and Martin Tally, and by them accepted for $1125, which bill was indorsed by Duncan. Thurmond and Hides, joint acceptors with Tally, paid on the second February, 1871, one-half of the amount of the bill, principal and interest then due, and were released from further liability by the plaintiff, holder of the bill. He now claims from defendants, in solido, Martin Tally, as accepter, and Duncan as indorser, the remainder due.
    The defense, on the part of Tally, that plaintiff should have exhausted his legal remedies against the drawer and the accepters Thurmond and Hicks, is not tenable under the rules of the law merchant. Tally and Thurmond are jointly bound as between themselves, but each is bound to the holder for the full amount. As to the indorser, Duncan, he is released by failure to serve legal notice upon him of the protest of the bill.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Looney, J.
    
      Lgan, Williamson, Wm. IT. Wise, for plaintiff and appellant. D. M. Oalliham, Lunean and Moneure, ior defendants and appellees.
   Taliaferro, J.

This suit is brought against Martin Tally as the accepter and James W. Duucan as the indorser of a bill drawn by A. Flournoy, Jr., to his own order upon Thurmond and Ilicks and Martin Tally, and by them accepted for $1125. The plaintiff alleges that Thurmond and Hicks, joint accepters with Tally, paid on the second February, 1871, one-half the amount of the bill, principal and interest then due, and that he released them from further liability. He claims from the defendants in solido the remainder due.

The defendant, Tally, denies any indebtedness to the plaintiff; avers that he accepted the bill for the accommodation of the drawer, a fact well known to him, and that his acceptance and indorsement were subsequent to that of Thurmond and Hicks. He alleges that he was but the security of Flournoy and Thurmond and Hicks, and can not be held liable until the plaintiff shall have exhausted his legal remedies against the plaintiff and the accepters Thurmond and Hicks.

The other defendant, Duncan, answered, denying indebtedness to the plaintiff.

Judgment was rendered in favor of the defendants and against the plaintiff, and he appeals.

The case must he determined by the rules of the law merchant. Under tlfese it is clear the defense is without force. Tally and Thurmond are jointly bound as between themselves, but each bound to the holder of the bill for the full amount. Duncan, the indorser, was released by failure to serve legal notice upon him of the protest of the bill. '■

It is therefore ordered, adjudged and decreed, that the judgment of ¿he lower court be annulled and reversed. It is further ordered that the plaintiff recover from the defendant, Martin Tally, five hundred and sixty-two dollars and fifty cents, with eight per cent, interest thereon, from the twentieth of Deoember, 1870, until paid, with all costs of suit.

Rehearing refused.  