Gilmore v. Carr

2 Mass. 171

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1806
• Status: Published

Opinion

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.

(a)

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.