
    Henry Turpin vs. R. D. Williams.
    Endorsers, Their rights against prior endorsers. A second endorser of a bill of exchange, who has paid the debt or any part thereof, under legal compulsion, may recover the same of Ms prior endorser in an action of as-sumpsit as for money paid to defendant's use, and is not obliged to resort to Ms remedy on the bill.
    FROM BEDFORD.
    Henry Turpin instituted Ms action of assumpsit on the 16th day of November,- 1852, against Robert D. Williams, in the circuit court of Bedford, and filed his declaration at the following April Term of said court, containing four counts. The first, is a count declaring upon a bill of exchange, drawn by D. M. Ellis on W. J. Ledyard, payable to Robert D. Williams, and by Mm endorsed to the plaintiff, bearing date the 9th of November, 1848, and due at four months, duly protested for non-payment March 12, 1849, with the usual averments of protest and notice. The second count is for money lent and advanced by tbe plaintiff for tbe defendant, and at his special instance and request. Tbe third is a count for money paid, laid out and expended by tbe plaintiff for tbe defendant, and at bis special instance and request. Tbe fourth is a special count in assumpsit, in which it is averred that tbe Bank of Tennessee was tbe owner of a certain bill of exchange drawn by one T). M. Ellis for tbe sum of $750, payable to Bobert D. Williams and endorsed by Eobert D. Williams, to tbe plaintiff, Henry Turpin,' and by said Henry Turpin to Joshua Hall, and by Joshua Hall to tbe Bank of Tennessee; that afterwards said bill of exchange was sued on in tbe circuit court of Bedford county in tbe name of tbe President and Directors of tbe Bank of Tennessee, and a judgment recovered against said Ellis, Williams, the plaintiff Turpin, and Joshua Hall, in December, 1849, for tbe sum of $750, and which judgment Henry Turpin, tbe plaintiff, satisfied on tbe 27th of April, 1850, at tbe special instance and request of Eobert D. Williams, tbe prior endorser of tbe said Henry Turpin, out of bis own means, and which said Williams, as tbe immediate endorser of tbe plaintiff, was bound to pay before tbe plaintiff, and when paid by the plaintiff the said defendant became liable to pay him tbe said amount when demanded. Tbe defendant plead non asswnvpsit and tbe statute of limitations to the first three counts, and filed a d&nvwrr&r to tbe fourth. There was joinder in demurrer and judgment, Judge DavidsoN presiding, on tbe demurrer, sustaining tbe same. The plaintiff thereupon entered a nolle prosequi as to tbe first three counts, and appealed in error to this court from tbe judgment on demurrer.
    
      'Ed. Cooper, for the plaintiff in error,
    said:
    1. The question presented to tlie court in tbis record is, whether a subsequent endorser'on a bill of exchange, who has been sued by the holder of the bill, jointly with the prior endorsers on the same bill, and a judgment recovered against them all, which he has been compelled by execution to pay, can sustain an action for money paid, against either one of the prior endorsers on the bill of exchange, which was sued on, and particularly his own immediate endorser? Now, this is a question of authority; and upon an examination of them I think that the Court will see that the Court below erred in sustaining the demurrer.
    2. It is a well settled principle of law, recognized by all legal minds, that where the plaintiff has been compelled to make a payment of the defendant’s legal debt, in consequence of his omission or neglect to discharge it, the law infers that the defendant requested the plaintiff to make the payment for him, and gives the action for money paid. Story on Contracts, 1st ed., p. 480, § 4T4. Chitty on Contracts, pp. 594, 595. 1 Ghitty’s Pleading, 350, 351, note.
    Now, as regards the plaintiff, the defendant was Tinder a legal obligation to take up the bill of exchange when it became due, when it was ascertained that the drawer and the defendant’s immediate endorser had failed to pay it; and after judgment was recovered against the defendant and the plaintiff, by the Bank of Tennessee, this legal liability, on the part of the defendant still existed, and was- binding upon him. It is not questioned that the plaintiff has paid and satisfied a judgment against the defendant and himself, which the defendant was primarily liable to pay, and which the defendant ought to have paid; but it is urged on the part of the defendant that the suit should have been brought by the plaintiff on the bill of exchange, the plaintiff having paid off the entire judgment. But we can see no force in the views thus presented against the weight of authority sustaining the position which we have taken. Nor are we without express authority on the very question now under discussion; cases which have been decided under a similar statement of facts, and by courts of acknowledged ability: 1st. The case of Butler vs. Wright, 20 Johns. K., 367, is the first adjudication on this subject, and which fully sustains the declaration in this case. 2nd. The same case of Butler vs. Wright, came again before the Supreme Court of New York, and is reported in 2 Wendell, 369, where thé former case is expressly recognized as good law. See also, Gregory vs. Burnett, 2 "Wendell, 391. 3rd. Once more did the case of Butler vs. Wright, go before the Supreme Court of New York, when the Court re-affirmed its former decisions, with additional arguments; 6 Wendell, 284-290; where the Court uses the following very clear and explicit language : “ The action on the money counts are resorted to as substitutes for bills in chancery, and ought to be encouraged whenever the plaintiff seeks to recover of the defendant a sum of money which the plaintiff has been compelled to pay for his benefit.” 4th. But we refer the Court to the case of Bownal vs. F&rra/rd, 4 Barnwell & Cresswell, 439; which is referred to and approved by the Supreme Court of New York, as deciding the very question now under discussion; and in which case Lord Tenterden, C. J\, said: “That the plaintiff was entitled to recover upon the general principle that one man who is compelled to pay money which another is bound by law to pay, is entitled to be re-imbursed by the latter; and that money paid under such circumstances is money paid to the use of the person who is so bound to pay it.” Chitty on Contracts, 595, 596, n. r., 63. Bleaden vs. Charles, 7 Bing, 246.. Jmkms vs. Tucker, 1 H. Black., 90. Cole vs. Cushing, 8 Rick Rep., 48. Rodman vs. Hedden, 10 Wendell, 498.
    Against these authorities the defendants rely on an obiter dñetum of the Chancellor in 6 "Wendell, 290,-where he states: “ That if the plaintiff had been the legal owner of the whole of the note at the time the suit was commenced, so as to have been in a situation to strike out the subsequent endorsements and recover against the prior endorser in the usual manner, by a special count on the note itself, that the action for money paid could not be sustained.” Why? No reason is given by the judge, nor can a sufficient reason be found to sustain the distinction here attempted to be made.
    The action is founded expressly upon the ground that the plaintiff has been compelled by lato to pay the money sued for, when the defendant was primarily and legally entitled to pay it before- the plaintiff. Besides, how could the plaintiff in this case have obtained the bill of exchange ? And if he could obtain it, what right would he have to strike out the subsequent endorsements, so as to vest tbe title in tbe plaintiff; or even if be could do so, and thereby authorize tbe plaintiff to sue on tbe bill of exchange, does that destroy tbe plaintiff’s right to recover in an action for money paid ?
    At tbe time tbe plaintiff paid tbe money there was an existing judgment against tbe defendant and tbe plaintiff, which the defendant was legally bound to pay. He was also primarily liable to pay it before tbe plaintiff, but tbe plaintiff paid tbe money. Now, has be not tbe right, under law, to recover tbe amount thus paid? If be has, when did bis right of action accrue? Hiohmmi vs. Sewcy, 9 Verger, 47-51. Marshale vs. Hudson, 9 Verger, 57-64.
    Tbe Court can readily see why tbe defendant insists that tbe plaintiff should sue on tbe “bill of exchange.” It fell due on the 12th March, 1849, and this suit was brought on tbe 16th November, 1852, and tbe defendant pleads to a suit on tbe bill, “tbe statute of limitations.”
    Having tbe choice of remedies, tbe plaintiff elects one that is not barred. In doing so be only desires to protect himself; not to injure the defendant. "With bis money be has, under tbe compulsion . of tbe law, paid tbe defendant’s debts; and be asks to recover his own?
    E. 33. DavidsoN, for the defendant in error.
    Tbe only question in this case is, whether an endorser who has paid tbe full amount of a bill of exchange to the bolder under legal process, can maintain assumpsit for money paid to tbe use of a prior endorser.
    
      The subject has been very fully discussed in New York, in the case of Butler vs. Wright, first tried in the supreme court of the State and reported in 20 Johnson, 367; and on appeal to the supreme court of errors reported in 6 Wendell, 284. In both courts it was held that the defendant and the plaintiff having endorsed a note to a bank, which was protested for non-payment, and the bank having recovered judgment against the plaintiff as second endorser, and he having paid part of the judgment; though the plaintiff could not maintain an action on the note, as it had not been fully paid, and was the property of the bank; yet, that he might sustain an action against the defendant, and recover the money paid by him, on the count for money paid for the defendant at his request. But in the supreme court of errors the Court unanimously held, that where the plaintiff had paid the whole amount of the note and taken it up, so that he might maintain an action directly on the note, the suit on the money counts could not be sustained.
    Where the payee and endorser of a promissory note, who endorsed it for the accommodation of the maker, and without any consideration between them, and who afterwards was compelled to pay the amount to the holder, it was held he cannot recover from the maker on any of the money counts in indebitatus assumpsit, but must sue on the note; and that the statute of limitations runs from the time the note fell due; not from the time the endorser paid it. Angel on Limitation, p. 100, citing Kennedy vs. Carpenter, 2 Wharton’s (Penn.) K., 344; and referring to Hoyt vs. Heed, 2 Bla'ck. (Ind.) B., 369.
   Totten, J.,

delivered the opinion' of the court.

The defendant, as first endorser of the bill, was liable to pay the money; and the plaintiff, who is second endorser, having been compelled by law to pay it when the defendant was liable to pay, the law will imply a promise on the part of the latter to repay the money. “For it is general principle, that a man who pays the debt of another by compulsion, may recover from him the amount of the debt so paid.”

It is said that the plaintiff, by making this payment, was only remitted to his remedy upon the bill; bnt, we do not think so. It is true, he might take up the bill, erase his own endorsement, and institute a suit upon it, but is not compelled to adopt this remedy. He may sue for money paid to defendant’s use. In Poronal vs. Ferrand, 6 Barn. & Cres., 439, a similar case, Holroyd, J., says: “I am of opinion that the plaintiff is entitled to recover in this action upon the same principle upon which a surety is entitled to recover money from his principal.

“ I think that a party .is not bound to resort to the original engagement unless it be by deed, but that he may, at his election, found his action upon the original engagement, or bring indebitatus assumpsit for money paid.”

~We think this is a sound principle, and that it will apply as well where the whole amount due on the original engagement is paid, as a part of it.

"We can see no reason or principle for a distinction founded on that circumstance. Chitty on Contracts, 513. Bayless on Bills, 274.

Let tbe judgment be reversed, and the cause be remanded.

Judgment reversed.  