Cox v. Mechanics' Savings Bank , 28 Ga. 529 ( 1859 )

By the Court.

Benning, J.,

delivering the opinion.

Did the court err in refusing a non-suit in these cases ? We think so. The bills of exchange are not within the act of 1826, (Pr. Dig. 462.) The question whether the acceptor and the drawer and the endorser were subject to be joined in the same action, is, therefore, a question to be determined by the common law. And by the common law they were not subject to be sued in the same action — they not being joint promissors — and their join-, der was good, even in arrest of judgment. — 14 Ga. 691; 18 do. 517.

1. We think, then, that the court ought to have granted the motion, unless the plaintiff had chosen to amend the declarations, by striking from each all the defendants except one.

2. There is no rule of law which makes a demand of the drawer, and a notice of his failure to.pay necessary to charge the acceptor, even, although the acceptor may be an acceptor for the accommodation of the drawer. The promise, even of an accommodation acceptor, is. to pay in the first instance — is to pay on demand* at the matu. rity of the draft. We find, then, nothing amiss in the charge.

Judgment reversed conditionally, i. e., unless the plaintiff will amend the declarations by striking from each of them all of its defendants except one.