
    SHIELDS ET AL. vs. PAUL.
    Easters Dis.
    
      June, 1841.
    APPEAL PROM THE COURT OP THE PIHST JUDICIAL DISTRICT.
    The endorser has a right to recover the damages which he has paid on a protested bill of exchange, from the acceptors, through whose fault his liability as endorser had attached.
    The gratuitous refunding by the holders, to an endorser, damages on a protested bill paid by him, confers no right on the acceptors to recover them from him, although they had also paid or refunded to him on judgment rendered.
    This is an action to recover the sum of $417 17, the amount of damages on a protested hill of exchange, accepted hy them and paid hy the defendant as endorser, hut which they subsequently paid and refunded to him. They allege he has received the amount of damages on said hill twice ; the same having-been refunded to him hy the Bank of Mobile, the holder of said hill. They pray judgment, that the said damages he paid over to them.
    The defendant pleaded the general issue ; and denied specially that he was liable to refund the money demanded. He admitted the transactions which led to the refunding the damages on the protested bill in question, but averred the plaintiffs had no right to hold him liable to them.
    The endorser has a right to recover the damages which he has paid on a protested hill of exchange, from the acceptors, through whose fault his liability as endorser had attached.
    There was judgment for the plaintiffs and the defendant appealed.
    
      C. M. Jones, for the plaintiffs.
    
      Barton, contra.
   Bullard, J.

delivered the opinion of the court.

The defendant, James Paul, being the endorser of a bill of exchange, drawn upon Shields, Turner & Renshaw, by whom it was accepted, which bill had been negociated to the Bank of Mobile, paid the same after protest for non-payment, together with costs, interest and ten per cent, damages, according to the law of Alabama. He thereupon sued the said acceptors and recovered the amount of the bill together with the damages which he proved he had paid to the Bank. That judgment was afterwards satisfied. The Bank of Mobile subsequently refunded to Paul the damages he had paid upon the protested bill, and the present action is brought by the acceptors to recover back said amount of damages ; they alleging that the said damages were remitted in pursuance of an act of the legislature of the State of Alabama, giving to certain banks time to resume specie payments, upon certain conditions. The defendant is appellant from a judgment which condemned him to refund the amount of damages 'thus received by him in pursuance of his judgment against the acceptors.

We are of opinion the court erred. It'is clear that Paul, having himself paid the damages on the protested bill, had a right to recover them from the acceptors, through whose fault the liability of the endorser had attached. There was therefore no error in the judgment, which would authorize the plaintiffs to claim a restitution of the amount upon the principles of the condiclio indébite. The only inquiry therefore is, whether the subsequent refunding of the damages to Paul by the Bank of Mobile created any legal obligation on the part of Paul to make restitution to the present plaintiffs.

The gratuitous refunding by the holders, to an endorser, damages on a protested bill paid by him, confers no right on the acceptors to re-coverthem from him, although they had aíso paid or refunded to him on judgment rendered.

The act of the legislature of Alabama “ to extend the time of indebtedness of the Bank of the State of Alabama, &c.” which appears to be relied on by the-plaintiffs, in their petition, authorizes the State Bank of Alabama and its branches, and even compels them to refund damages on protested bills of exchange to those by whom they had been paid. So far as it relates to the State Bank and its branches, such restitution or remission as the case might be, may be regarded under that statute as one of the conditions upon which the suspension of specie payments was tolerated for a limited period. But nothing shows that the Bank of Mobile was under any such legal obligation to remit or restore the damages on protested bills. The ninth section of that act relates exclusively to the State Bank; (acts of 1837, page 9.) Whatever may have induced the Bank of Mobile to restore the amount in this case, whether it was the punctuality of the endorser, or a desire to be as liberal as the State Bank, or that it became ashamed of exacting the pound of flesh from its delinquent debtors, while it was paying its own engagements only in new and perhaps illusory promises to pay, in constant violation of its charter, there is no evidence in the record to show that any favor was intended to be conferred upon the present plaintiffs. So far as it appears, we must regard the act of the bank as one of pure liberality out of personal consideration for the defendant, and conferring no legal rights upon the plaintiffs in this case.

It is therefore ordered and adjudged that the judgment of the District Court, be reversed, and ours is for the defendant with costs in both courts.  