
    Jonathan Gilmore versus Hubbard Carr.
    Where an endorsee of a promissory note has recovered judgment and satisfaction in an action against the endorser, he cannot have costs in an action previously commenced against the promisor.
    Assumpsit by the endorsee of a promissory note against the promisor. By a state of facts agreed on, it appeared that the plaintiff, at the same term when this action was commenced, also brought an action against the promisee as endorser. In this last action the defendant was defaulted, judgment given against him for the amount of the note and costs; execution issued upon that judgment, and was returned satisfied.
    t * 172 J * The question which, upon these facts, was submit ted to the Court, was, whether the plaintiff could maintain this action for the costs. If the Court should be of opinion that he could, then judgment is to be rendered in his favor for one cent damage and costs of suit; but if otherwise, the defendant is to recover his costs.
    
      Dana for the plaintiff.
    
      Ward for the defendant.
   Parker, J.

This is a case in which the plaintiff had a right to bring several actions for the same sum. But I have always considered that he does it at his peril as to the costs. Recovery and satisfaction in the other action would support a plea of non assumpsit in this. Upon the facts agreed, it appears to me that the defendant is entitled to his costs.

Sewall, J.

If this action was on trial upon this evidence, there could be neither verdict nor judgment for the plaintiff. I think the defendant must have his costs.

Sedgwick, J.

I am of the same opinion. In these cases pay ment to the endorsee by any of the parties to the note, at any time before trial, is a discharge of the promise. He may have as many actions as there are parties prior to him, but he can have but one satisfaction. This he has received in this case, and therefore cannot maintain this action.

Parsons, C. J., concurred.

Costs for the defendant. 
      
      
         Sed vide é contra, Porter vs. Ingraham, 10 Mass. Rep. 98.— Chitty on Bills, 346, 347, 4th ed.— Toms vs. Powell, 7 East, 536. — 6 Esp. 40.—3 East, 316. — 3 Camp. 331. — Holt, C. N. P. — 6 Bayley on Bills, 333, 5th Lond. ed.
     