
    Reason E. Mabry vs. Obadiah Matheny.
    Bills and notes lose their negotiable character after payment, as between the original parties ; but a party who indorses a note or bill after payment, knowingly, binds himself; and the indorsee may recover of him the amount of the note.
    A declaration, which alleges that the defendant and two others, on a day named, made their note, and promised to pay D. or order a certain sum at a time named; and the defendant, after the dale of the note, paid it to D. and took it into possession ; and, knowing that he had in law discharged it, he, for value received, indorsed and delivered it on a day named, to the plaintiff, contains a sufficient statement of a cause of action against the defendant.
    In error from the circuit court of Kemper county; Hon. Benjamin F. Caruthers, judge.
    Reason E. Mabry sued Obadiah Matheny, in assumpsit, in three counts, but entered a nolle prosequi as to all but the last, and as to that the record recites “came on to be heard, the defendant’s demurrer to the third count in plaintiff’s declaration, which, upon argument, is sustained, and is considered by the court that the cause be dismissed. Therefore,” &c. No demurrer is formally in the.record.
    This count substantially alleges, that the defendants, William S. Sharpe and B. V. Gamage, on the 11th of Februarjq 1837, by their promissory note of that date, promise to pay James Douglass on or before the first of March next thereafter, six hundred and twenty dollars, with interest from the 27th of January last before its date. That on the 30th of May next after the date of the note, the defendant paid the same to Douglass, the payee, and took the note into his possession ; that knowing he had in law discharged the note, for a valuable consideration received by him from the plaintiff, he indorsed and delivered the said note to the plaintiff on the 12th day of June, 1837, and by said indorsement promised the plaintiff to pay him the amount of the note with interest, according to the tenor and effect of the note, concluding with a super se assumpsit, and breach.
    The plaintiff below sued out this writ of error.
    
      A. B. Dawson, for plaintiff in error.
    1. There can be no difference between a promissory note and a bill of exchange, as to the question presented by this count; and Mr. Justice Story, in his work on Bills of Exchange, section 223, says, “ Bills remain negotiable even after payment, so far as respects the parties who shall knowingly negotiate the same afterwards; for in such case the negotiation cannot prejudice any other persons, and will only charge themselves.” This authority, based upon the cases referred to in Story on Bills, p. 246, note 2, must dispose of the first point in favor of the plaintiff in error, without the aid of the general rule, that every in-dorsement is equivalent to the making of a new note, where the indorsement is made after the note is due. See 17 Wend. 214; Seymour v. Van Slyclc, 8 Wend. 403; 2 Am. Com. Law, 251, 252.
    2. The plaintiff in error insists, that the count sets out a special contract by the defendant, in his indorsement to pay the note to the plaintiff; and the count being on this special contract founded on a valuable consideration, the plaintiff is entitled to recover in that view of the case. 7 Pick. 294.
    
      Hutchinson and Foote, on the same side.
   Mr. Chief Justice ShakKey

delivered the opinion of the court.

This was an action of assumpsit on the defendant’s indorsement on a promissory note. The plaintiff entered a nolle prosequi as to the two first counts, and relied on the third. It is recited in the record that the defendant’s demurrer to the third count was sustained, and judgment rendered for defendant, and to reverse this judgment this writ of error is prosecuted, though in truth the record contains no such thing as a demurrer. But assuming that the demurrer was filed and sustained, the question is, was the judgment correct?

The third count charges the liability of the defendant to have arisen in this way ; William S. Sharp, B. V. Gamage, and the defendant, had made a joint note to James Douglass. The defendant took up the note after its maturity, and indorsed it to plaintiff. The declaration alleges with all necessary precision, that by the indorsement, the defendant undertook and promised to pay the plaintiff the amount of money specified in the note. A contract is thus stated on which the plaintiff had undoubtedly a right to recover. As between indorser and indorsee, the indorsement is a new and distinct contract. If it be general, the note is referred to for the purpose of regulating or explaining the contract. But if it be special, as this declaration describes it to have been, the note is no further useful than to limit the amount of the contract. Bills and notes lose their negotiable character after payment, as respects 'the original parties. But a party who shall knowingly negotiate a note or bill after payment, binds hipiself. Story on Bills, 263, sec. 223. The demurrer to the declaration was therefore improperly sustained, and the judgment must be reversed and cause remanded.  