
    Eldred Rawlings, use of James W. McLung, vs. William P. Poindexter et al., Administrators of George Mason, deceased.
    An indorser of a note or bill of exchange, after he has paid it or any part of it, may maintain an action for money had and received against the maker of the note or drawer of the bill; but in such action, which is in the nature of a bill in equity, he can only recover such sum as he has actually paid.
    If therefore there be a .first and second indorser of a note, one of whom has paid a portion of the note and the other the residue, and the latter sue the maker on the note for the whole amount of the note, he can only recover for such sum as he has actually paid ; leaving it to the other indorser to sue for what he has paid.
    In error from the circuit court of Noxubee county; Hou. A. B. Dawson, judge.
    The facts sufficiently appear in the opinion.
    
      Evans and Topp, for plaintiffs in error,
    Contended, that Rawlings had the right to sue the drawer for the whole amount of the bill of exchange; it would be different if he were suing a prior indorser; if he collected the whole amount, he would be a trustee for the indorser, to the extent of the sum paid by him; and the recovery in his favor would be a bar to any other suit. They cited Bay. Bills, 127; Reed v. Fur nival, 1 Car. & M. 538; 5 C. & P. 499; Wright v. Butler, 6 Wend. 284.
    
      A. W. Dabney, for defendants in error,
    insisted, in an elaborate argument,
    1. That the claim was barred by the statute of limitations. 2. That it had never been probated, and, under the act of 1846, no claim could be collected against an estate, without previous probate, according to the statute, Hutch. Code, 681. 3. That no action could be maintained on the bill, which had been merged in the judgment rendered on it. 4. That in no event could the indorser recover more than he had actually paid.
    
      Guión and Baine, on same side,
    also argued the various points arising on the record.
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action of assumpsit, containing three counts; two upon a bill of exchange, and one for money paid to the use of the intestate.

In April, 1837, Mason drew a bill of exchange on Martin, Pleasants & Co., at twelve months, for upwards of $4000, payable to W. D. Lanier, and indorsed by Lanier to Rawlings. The bill was protested, both for non-acceptance, and non-payment, and it was in proof that Mason had no funds in the hands of the drawees, at the time when the bill fell due. Notices of the protest were sent to Huntsville, Alabama, at which place the bill was dated.

It was in proof that Lanier had paid near $2000 on the bill, and that Rawlings had been sued upon his indorsement for the residue, and had paid it after judgment against him.

Mason died in 1839, and his widow qualified as executrix of his estate, in August, 1839. Notice of this claim was given to h'er, in March, 1840. A few months, thereafter, Mrs. Mason moved into Alabama, and the present defendants qualified as administrators de Ionia non, in 1845. This suit was brought in 1846.

The case comes up on exceptions to the charges given and refused respectively by the court.

The first charge, “ That if any part of the bill was paid by the first indorser, the second indorser was discharged from liability to that extent,” was correct, and requires no comment.

The second charge was, “That if part of the bill had been paid by the second indorser, he could not sue on the whole bill, and recover against the defendant, for the whole amount.” Under the circumstances, this charge, so far as it goes, is likewise unobjectionable; but the jury should also have been told, that if the liability of the drawer had been fixed by proper evidence, then that the second indorser was entitled to recover as much as he had paid, by reason of his indorsement, though less than the whole amount. This was in effect asked on the part of the plaintiff, and refused. That refusal was error.

An action for money had and received will lie, by the indorser of a noté against the maker, after he has paid it. Cole v. Cushing, 8 Pick. 50. Such action is in the nature of a bill in equity, and equal and exact justice between the parties should be done in it. Wright v. Butler, 6 Wend. 290. Lanier might thus have recorded, in this form of action, what he had paid as first in-dorser. Consequently the present plaintiff should only recover what he paid, leaving Lanier to enforce his own rights. This is the justice of the whole transaction.

The judgment must be reversed for this error, and a new trial awarded.

Judgment reversed, and cause remanded for new trial.  