
    Cage, executor, &c. vs. Foster, use, &c.
    When a suit is brought in the name of A for the use of B, if B had no authority from A to use his name, the suit will be dismissed.
    The proper practice, when a suit is brought in the name of A for the use of B, to dispute the authority of B to use the name of A, is to state the facts upon affidavit, and have a rule for B to show cause why the suit should not be dismissed.
    One co-security may bring an action of assumpsit against another co-security, when he has paid the money, without demand of the money from the co-security, when the principal is insolvent.
    Foster and Barkly were the securities of Barkly and Foster, who were merchants, to a sealed note for ‡315, payable to Samuel Owens. When the note fell due, Foster paid it. This action is brought in the name of Foster, for the use of Bowman, in assumpsit against Cage, the-executor of Barkly, the co-security, to recover the moiety of the sum paid by Foster. The defendant pleaded non assumpsit. Upon the trial the payment by Foster of the money was proved. It was not proved that Foster authorized the suit to be brought in his name for Bowman’s use, nor was it proved there was no authority. It was proved that the principals in the note were insolvent. It was proved that the interest in the sum of money belonged to Bowman. It was submitted to the jury,, on proof of the facts, whether Bowman was entitled to-sue for his own use in Foster’s name. The court charged the jury, that a suit would well lie in the name of on& man for the use of another; that one co-security could maintain assumpsit for money paid, against his co-security, when the principal was insolvent. The jury returned a verdict for the plaintiff; a motion was made for a new trial, and being overruled, the defendant appealed in error to this court.
    
      Wm. Jl. Wade, for the defendant in error.
    1. Can a surety who has paid the debt of his principal, maintain assumpsit against his co-security for his proportion of the amount? This principle was clearly settled in the case of Cowell vs. Edwards, (2 Bos. and Pull, 268,) before Lord Eldon, Chief Justice, and has not been departed from in the English courts. In that case the court observed, “that it might now, perhaps, be found too late to hold that this action could not be maintained at law, though neither the insolvency of the principals, or of any of the co-sureties, were proved.” See also, 2 Com. on Con. 187: Deering vs. Winchilsea, 2 Bos. and Pull. 270. In the courts of the United States the same doctrine has been settled so often, and with such signal ability, that the question can scarcely, at this day, be considered de-bateable. The principle was fully discussed and settled in the case of Bachelder vs. Fishe, (17 Mass. R. 464,) where the court decided that a surety who has paid the debt of his principal, may maintain indebitatis assumpsit against his co-surety for contribution. That case also decides expressly, that when the money has been paid after the death of the co-security, the plaintiff may recover against the executor on a special count, setting forth the liability of the co-security, and his promise accordingly. From the nature of the relation which exists between sureties, assumpsit is the proper remedy when one discharges the whole liability. It falls within the class of cases where the law implies a promise on the part of a co-surety to discharge his proportion of the liability. Our act of 1801, ch. 15, (PI. and Cobbs, 303,) proceeding upon this principle, declares that where judgment has been obtained against two sureties, and the principal is insolvent, a surety may have judgment by motion against his co-security, for his proportion of the debt. As judgment was not obtained in this case, the plaintiff below cquld not proceed in a summary manner, but was driven to the action of assumpsit, which is certainly the appropriate action.
    2. It is objected by the plaintiff in error, that in this / State suit cannot be properly brought in the name of one individual for the use of another, unless it be upon a negotiable instrument. This court, in the case of Vincent vs. Groom, (1 Verger’s Reports, 430,) decided that nothing is better settled in the courts of this State, “than that one person may sue for the use of another, and that this practice applies to negotiable instruments as well as covenants or other contracts not negotiable.” '
   Catron, Ch. J.,

delivered the opinion of the court.

Foster and Barkly were the sureties of Barkly and Foster,- merchants, to a sealed note for $315, payable to Samuel Owens. When the note fell due, Foster paid it, and suit was brought for Bowman’s use, in assumpsit, against Cage, as executor of Barkly, the co-surety.

1. It was submitted to the jury, on proof of the facts, whether Bowman was entitled to sue for his own use in Foster’s name. The jury found he was. This was a mistaken course of practice. If Bowman brought the suit in Foster’s name, without his authority, then the defendant might have stated the fact on affidavit, and have had a rule on the plaintiff to show cause why the suit should not be dismissed. If no authority was produced from Foster, then Bowman would have been in contempt for abusing the process of the court, and the suit would have been dismissed. So it is in case an attorney brings a suit at the request of one who sues in the name of another; and so this court has twice holden. The fact whether Bowman liad the authority to bring the suit in Foster’s name, was not in issue, and no proof before the jury ought to have been heard touching the point. No harm, however, resulted from it.

2. Can a surety who has paid the debt of his principal, maintain assumpsit against his co-security for his proportion of the amount; and this without demanding payment of the co-surety?

The declaration alleges a general request and promise to pay. The general issue was pleaded, and found for the plaintiff. The plaintiff was not bound to prove more than he had alleged. But aside from this, it is believed no special request was necessary to authorize the co-surety to recover the moiety from Barkly or his executor, the principals being insolvent. Barkly and Foster were jointly bound to pay Owen when the note became due, of course in equal proportions. For either to withhold payment, was a violation of the laws of the land, as it affected Owen, the obligee, and contrary to good morals. To Owen, either Barkly or Foster were bound for the whole, and as a punctual and honest man, it was the duty of Foster to pay the day the note fell due. On doing so, he paid one moiety for Barkly, and could well sue him for money paid to his use. This is clear on principle, and on authority, where the principal debtor is insolvent. How it is when he is solvent, it is not necessary in this case to enquire. 2 Com. on Con. 187: 17 Mass. R,. 464. The act of 1801, ch. 15, maintains the same principle of liability, and provides a summary remedy where judgment is had by the obligee against the surety, permitting him to recover over against the principal without having paid. The act of 1809, ch. 69, extends the principle, and gives the remedy by motion to surety against co-surety. We think the verdict was correct, and order the judgment to be affirmed.

Judgment affirmed.  