I concur in the conclusion arrived at by Mr. Justice Daniels. The precise question to be here determined depends for its solution, in the first instance, upon the effect of the defendant’s answer. Under this answer the equities, as between the plaintiff and the indorsers, are not in the case. We have simply to decide, therefore, whether a part of the note has been paid to the plaintiff by the defendant or on his behalf. Nothing of the kind is set up in the answer. The defendant says that the plaintiff has received 73J per cent, of the note, and that there is only due it on account of said note 26| per cent, thereof. But he does not aver that this percentage was received from him, or from some one who paid it on his account. The averment, therefore, is not a plea of payment pro tanto; and it is irrelevant to say that the plaintiff has received a part of the note without adding that it was so received from the defendant, or from some one who made the payment on his behalf. The answer was demurrable, and no other judgment could have been rendered upon such a plea than that which was rendered. But, even if the matter set forth in the agreed statement of facts had been pleaded, the defendant’s case would not have been helped; for it thereby appears that the payments made by the receiver of the indorsers were made, not by or on behalf of the defendant, but on account of their independent contract. The payments were so made, not because the maker was liable therefor, but because the indorsers were themselves liable therefor. Such payments were not upon account of the maker’s primary obligation, nor can the maker take advantage of such payments to relieve himself from his distinct contract obligation to the holder. It is true that the indorsers, upon payment under their contract, have a right of action over against the maker; and it may be asked, how then can the holder have a right of action against the maker for the full amount of the note? And how can the holder, under any circumstances, be allowed to recover from any one more than the amount of his note? There need be no inconvenience in these particulars, and the logic of the legal situation may be preserved without subjecting the maker to payment twice, or permitting the holder to receive more than his due, or frustrating the indorser’s action over. In the first place, payment to the holder by the maker fully extinguishes the latter’s obligation. In the nature of things, this must be so, and that, too, although the indorser may have previously paid a part of the amount due. If the indorser has paid such part, and is unwilling to permit the holder to collect from the maker the part so paid as well as the remainder, he has his direct action against the maker, and the latter can interplead the holder, and bring the whole amount of the note into court for equitable division. Whether the maker be sued by the holder or by the indorser, he can interplead the other party and bring the whole amount of the note into court; thus at one and the same time satisfying the holder for the whole amount due on the note, and the indorser for the amount paid thereon by him. The right of the holder to sue for the whole amount of the note is not affected by the rule of the Code which requires all actions to be brought in the name of the real party in interest. The holder is not atrustee for the indorser when, after part payment by the latter, he proceeds against the maker for the whole amount of the note. It is true that, after he has collected the whole amount, the law implies a trust obligation to repay to the indorser the amount of his previous payment. In that sense, he holds part of the money collected as trustee for the indorser. But as between the holder as plaintiff in the action, and the maker as defendant, the action is not brought by a trustee, but by the owner of the paper; and as such owner he is the real party in interest.
Any other view of this relation overlooks the true nature of the original contract and the obligations which the maker and indorse]' respectively assume. Besides, it has been repeatedly held that he who holds the legal title to the in*273strument is the real party in interest, and that the defendant has no right to show the equities under which the transfer was made, or otherwise to prove that the recovery would be for the benefit of some one other than the plaintiff, in whom the legal title is vested. I agree, therefore, with Baron Cress-well in Jones v. Broadhurst, cited by Mr. Justice Daniels, that “the only question in which he [the defendant] has any ihterest is whether the party seeking to enforce payment by him is the legal owner of the bill, and whether recovery by and payment to such party will inure as a satisfaction and absolute discharge of his liability upon the bill. ” Baron Cresswell demonstrates the latter proposition with convincing logic, and certainly the defendant here, who has not paid the indorsers nor offered to pay them, nor even pleaded liability to pay them, cannot escape his contract obligation upon a mere suggestion aliunde his answer that perhaps the indorsers may prefer to hold him directly, rather than look to the plaintiff as their trustee. Thus the defendant, without offering to pay any one, insists that he should be relieved from a part of his contract obligation. His case does not differ from that of the defendant in Jones v. Broadhurst, supra, and his situation is well described in the opinion in that case, as follows: “The plaintiffs stand upon the record the legal owners of the bill, and the defendant as having failed to perform his contract without any legal excuse for the breach. The defendant was the party primarily liable, and by his plea he sets up, by way of discharge, satisfaction by one not in privity with him in relation to such satisfaction, and which we think did not inure to his discharge.” I may add to the list of authorities cited by Mr. Justice Daniels, Thornton v. Maynard, L. R. 10 C. P. 698, where Lord Coleridge, speaking of Jones v. Broadhurst, said that “the judgment of Cresswell, J., in that case reviews the authorities, and finally decides that payment, either partially or in full, by the drawer to the indorsee, does not disentitle the indorsee to sue the acceptor for the full amount of the bill.” He also cites Byles on Bills, (10th Ed.) 210, where Sir John Byles says: “To an action against the acceptor, payment by the drawer is no plea, but only converts the holder into a trustee for the drawer when the holder afterwards recovers from the acceptor. ” By the payment of this judgment the defendant will have paid the note and extinguished his entire obligation thereon; and the indorsers will no longer have any right of action over against him, but will have to look to the plaintiff for the amount already paid on account of their obligation. We must not speculate as to why the receiver of the indorsers has not already sued the defendant, nor why he has suffered the plaintiff to proceed as the owner of the note for the recovery of the whole amount thereof from the maker. Such speculations would be unprofitable, and would only tend to confuse the real question, namely, whether the payment by the indorser under his contract of indorsement is a payment by or on behalf of the maker, operating pro tanto to extinguish the maker’s obligation. Upon both principle and authority, we think such payment is in extinguishment of the indorser’s liability, and of that alone, and that it is not a payment for or on behalf of the maker. We think, too, that the single payment by the maker to the holder of the entire sum due and payable by his contract inures as a satisfaction and absolute discharge of his liability upon the note. I agree that the judgment should be affirmed, with costs.