
    Doremus and Wilbur against Selden, impleaded with Ogden and another.
    . To support a several persons, mom^Tpai/to defendant,f Safthe money ¡^ntS^oiT/oi
    "ers *? .trade, being joint endorscrs of a note which had been protested meet, "became éne^o"*’ them mdetThe'Icc Karels, "gave seP^?c^ were’ accepted m payment by the holders of the original note, which was delivered up to J). fy W., who brought an action of assumpsit for so much money-paid, against the prior endorsers: Held, that the payment, not being made by the plaintiffs j’ointly, or as partners, nor out of a j'oint fund, the action was noi maintainable.
    THIS was an action of assumpsit, tried at the Nem-York sittings, in December, 1819, before Mr. Justice Woodworth,
    
    The declaration contained the common money counts.
    The plaintiffs were the third endorsers of a promissory note, dated the 8th of July, 1816, drawn by Davison, Day, and Pierson, by which they promised to pay, sixty days after date, to the order of Israel Canfield and Co., eight hundred dollars, for value received. The note was en-3 dorsed by the payees to Andrew Ogden and Co., and by • J r J b ’ •; them to the plaintiffs, who endorsed the same to Bostwick and Sterling. The note was protested for nonpayment, and due notice given to the endorsers. On the 7th of April, 1817, the Bank of JYew-York, in which the note was lodged, received from the Assignees of Bostwick and Sterling payment of the note, which had been charged to them in account.
    
      "The defendant gave in evidence his. discharge under the inso{vent act} dated the 6th of February, 1818, which was objected to, because no notice of it bad accompanied the plea °f the general issue; but the judge overruled the objection. The plaintiffs then gave in evidence an agreement, dated the 13th of February, 1818, executed by J. Haggerty and W. Cairns, which recited, that, whereas they, Haggerty and Cairns, as acting assignees of the estate and effects of Boslwick and Sterling, were holders of a certain note, (being the one above described,) 8ic., and whereas the said F. Doremus, on a certain compromise made with him, on the 9th day of August, gave to them, H. and C., as assignees. See. four promissory notes of fifty-three dollars each, payable in three, six, nine, and twelve months, all of which were endorsed by N. Weed, and two of them paid as they became due respectively, and had paid the costs of a suit against Doremus and Wilbur on the said note, and the costs, also, of another suit against A. Ogden and Co., also endorsers on the said note; and whereas the said R. Wilbur had given to them, H. and C., as assignees, &e. his promissory note for four hundred and thirty-nine dollars and twelve cents, payable in six mouths, endorsed by N. and H. Weed; they, the said Haggerty and Cairns, in consideration of the premises, &c. accepted the said two notes of Doremus, which had not yet become payable, and the said note of Wilbur, in full satisfaction and discharge of the said note of Davison, Day, and Pierson, above described, and which they thereby assigned to .the said Doremus and Wilbur for their own benefit. It appeared that a ca. sa. was issued on the 31st of December, 1817, on a judgment recovered against Doremus and Wilbiir, as endorsers of the above mentioned note ; that Wilbur, who was taken on the ca. sa. was discharged by the attorney of the plaintiff in the suit, who thereupon endorsed on the execution, “ Satisfied the 12th of January, 1818,” and the sheriff also endorsed it satisfied; and it was returned and filed, January the 18th, 18-18.
    
      Wilbur, at this time, resided in Neiv-Jersey, and carried on business on his own account, and Doremus was living as clerk, with a merchant in New-York.
    
    
      A verdict was taken for the plaintiffs, for seven hundred and eighteen dollars and eighty-one cents, subject to the opinion of the Court, on a case containing the facts above stated*
    
      R. Sedgwick, for the plaintiffs.
    1. The notes given by D. and W. were accepted by H. and C. as payment, and are, therefore, to be considered as so much money paid. (Cuming v. Hackley, 8 Johns. Rep. 202. 206. Beardsley v. Root, 11 Johns. Rep. 484. Whitney v. Mann, 11 Johns. Rep. 518. Service v. Crafts, 12 Johns. Rep. 90. 9 Johns. Rep, 409. 15 Johns. Rep. 241.)
    2. The suit is rightly brought in the names of D. and W. as they were partners when the endorsement of the original note was made; though the notes given in payment were made by JJ. alone. (Graham v. Robertson, 2 Term Rep. 282.)
    3. The discharge of W. on a ca. sa. cannot affect the right of action in this case, as the payment of the notes was subsequent. (Seymour v. Minturn, 17 Johns. Rep. 169.) Besides, the attorney had no power to discharge W. from the execution, until the money was paid. (Jackson v. Bartlett, 8 Johns. Rep. 361.)
    
      Griffin, contra.
    Without particularly discussing the first point, the second point made is clearly with the defendant. This is an action of assumpsit, for money paid by the plaintiffs to the úse of the defendant. It is necessary, therefore, to show a joint payment by the plaintiffs. Now, the plaintiffs were not partners when the notes were given. They were not joint, but separate notes. Suppose the money recovered by the plaintiffs, it will not be divided between them, as partners; but each will take the amount paid by him. (Brand v. Boulcott, 3 Bos. and Pull. 235. 5 Esp. N. P. Rep. 194. Osborne and another v. Harper, 5 East’s Rep. 225.) To authorize a joint action, there must be a joint fund out of which the money is paid. '
    Again; the discharge of W. from the ca. sa. was a complete satisfaction and discharge of the judgment against D. 
      and W. as endorsers of thé original note ; and the subseqUent proceedings were in fraud of the insolvent act.
   Spencer, Ch. J.

delivered the opinion of the Court. The principal question is, whether the plaintiffs can maintain a joint suit, on the evidence in this casé ?

The plaintiffs’ right to recover does not depend on a joint liability, as endorsers of the note, on which the defendants were prior endorsers, but on the fact, whether the plaintiffs jointly paid Ihe note: Nor does this cause involve the question how far a negotiable note may be deemed a payment of a precedent debt, when taken as payment. The plaintiffs were partners, and prior to any payment of the note endorsed by them, and which is the foundation of this suit, had become insolvent.

The assignees of Bostwick & Sterling, (Haggerty and Cairns,) who were the holders of the note made by Davison, Day, & Pierson, received of Doremus, on the 9th of August, 1817, four notes, amounting together to two hundred and twelve dollars, endorsed by N. Weed, and two of which, being one hundred and six dollars, were paid prior to th^ 13th of February, 1818. The assignees also received of Wilbur, the costs'of the suit against Doremus Sr Wilbur, and A. Ogden 8r Co., and also a note made by Wilbur to N• Sr, H. Weed, and" by them endorsed, for four hundred and thirty-nine dollars and 82 cents, dated the 13th of February, 1818, payable in six months,-ffn full of their liability on the note of Davison, Day, Sr Pierson, and wholly discharged them.

In Graham and others v. Robertson, (2 Term Rep. 282.) the plaintiffs and two other persons were joint owners of a privateer; the defendants were owners of another privateer; a prize was taken, condemned, and sold, by agreement between the owners of the two ships. The sentence of condemnation having been afterwards reversed, restitution with costs was awarded, which were' paid solely by the plaintiffs, the two other partners, in the interim, having become bankrupts. It was held, that the plaintiffs could not maintain the action for a moiety of the sum paid, for it was either a partnership transaction, and then all the partners ought to be joined, or it stood as-a separate payment by each individual, when each should have brought a separate action. This case leaves the point undecided, whether all the partners, as well those who paid, as those who had become bankrupts and paid nothing, could maintain the action. The case of Osborne and another v. Harper (5 East, 225.) bears more strongly on the question. There, A. B and C. having dissolved partnership, C. after the dissolution, drew bills, in the partnership firm, in favour of D., he being ignorant of the dissolution. D. sued all the former partners, and recovered judgment. A. and B., after-wards, through their attorney, satisfied the judgment, and brought a joint action against D.; and the question was whether the action could be sustained by A. and B. jointly or not. The Court were of opinion, that unless it appeared, in point of fact, that the damages in the former action had been paid out of a joint fund or stock, a joint action could not be supported; for without a joint fund there could not be a joint payment; and the action was finally maintained upon its being shown to the Court, that their attorney had advanced the five hundred pounds on the joint credit of the plaintiffs ; and Lord Ellenborougk said, that created á joint fund for the discharge of the execution ; and, consequently, a joint action would lie. Brand and Herbert v. Boulcott, (3 Bos. & Pull. 235.) coincides with this doctrine.

It appears to me that the principle advanced in Osborne and another v. Harper is the true one : That to enable several persons to join in demanding the repayment of a sum of money, it ought to have been paid out of a joint fund. Here the plaintiff's contributed to the payment separately, and in unequal parts, without any community of interest in the money paid, and, therefore, they cannot maintain a joint suit.

Judgment for the defendants.  