
    Matthias Prest vs. Ferdinand S. Vanarsdalen, Assignee of David Mersereau.
    If after the holder of a promissory note obtains a judgment on it against the maker, the endorser pays the note, and then endorses it to a third person, such third person cannot maintain an action upon the note against the maker in the ordinary form of endorsee against drawer.
    A promissory note at ninety days for sixty dollars, dated 29th January, 1819, drawn by Matthias Prest in favor of and endorsed by David Mersereau, was discounted at the bank of New Brunswick, for the benefit of Prest. When due it was protested for non-payment and notice given to the endorser. In March term, 1820, the bank obtained judgment against Prest upon the above note and others in the Court of Common Pleas of the county of Middlesex; but Prest having become insolvent, nothing was obtained from him. After the judgment Mersereau as endorser paid the note to the bank. It was delivered to him and by him endorsed to F. S. Vanarsdalen, who thereupon brought an action against Prest, before a justice of the peace and filed a state of demand as endorsee against drawer in the ordinary form. The justice rendered judgment against Prest. Pie appealed. The Court of Common Pleas also rendered judgment for the amount of the note in favor of the plaintiff below, and this judgment is removed here by certiorari at the instance of Prest.
    
      
      Nevius for plaintiff in certiorari.
    
      L. JD. Hardenbergh for defendant.
   By the Court.

After judgment was rendered in favor of the *bank against Prest, upon the note in question, [*195 another action against him could not be maintained upon it as upon a subsisting instrument. It has passed, as concerned him, “in rem judieatam.” Bean v. Smith, 2 Mason, 268. Mersereau having as endorser paid the note to the bank, as he was bound to do, acquired by the payment a right of action against Prest, which he might have maintained under a state of demand for money paid, laid out and expended, or setting forth the circumstánces of the case, but which he could not enforce, or by endorsement authorize another to enforce, upon the note itself and in the ordinary form of payee or endorsee against drawer.

Let the judgment be reversed.  