
    Charles Cole versus Hannah Cushing.
    Tiie maker of a note, who has been committed to jail on execution on a judgment in favor of the holder, but has not paid the note, is still liable to be sued by an indorser who pays the amount of the note to the holder j and the suit of the indorser may he brought while the maker is still in jail in the prior suit.
    An action for money had and received may be maintained by the indorsee of a note against the maker, although the note was signed by the maker merely for the accommodation of the payee, and the maker never received either money or any other consideration for signing It.
    \Vhere the holder of a note with several indorsers in blank, sues the maker and writes over the name of the first indorser an order to pay it to himself, the holder, but without striking out the names of the subsequent indorsers, he does not thereby discharge them ; and therefore one of them who pays the amount of the note to the holder, may sue any of the prior parties.
    This was an action of assumpsit for money had and received. The defendant was defaulted, with an agreement that the default should stand, or be taken off and a nonsuit entered, as the Court should determine on the following facts, disclosed at the trial before Parker C. J.
    On May 23d, 1826, the defendant, at the request of her son Thomas Cushing, to whom she was not indebted, made a negotiable promissory note to him for 200 dollars, payable in four months and grace. This note was indorsed by Thomas Cushing to the plaintiff, to whom he was indebted ; and the defendant knew that it was made for the purpose of being passed to the plaintiff. The note, after being indorsed by the plaintiff and Richard Martin, came to the hands of Charles Whitmore, who brought a suit thereon against the defendant and obtained judgment against her at the April term 1827 of the Court of Common Pleas, for 207 dollars 50 cents damages, and 19 dollars 84 cents costs. Over the name of Thomas Cushing, the first indorser on the note, was written “Boston 23d May, 1826. Value received, pay the within to Charles Whitmore,” but the names of the subsequent indorsers were not struck out. Whitmore took out execution, and committed the defendant to jail upon it on May 16th, 1827. She was liberated June 10th, 1827, by taking the poor debtor’s oath. On May 19th, 1827, the plaintiff gave his note to Whitmore for 250 dollars, being intended to cover the amount of the judgment and costs, and on the same day brought this action, and attached an estate which the defendant held as dower. The plaintiff was present when the defendant took the poor debtor’s oath, and he neither opposed nor assented to her liberation, and did not inform her of the commencement of this suit; and it did not appear that she knew of this suit until June 18th, when the summons was left. Before she was liberated, but after the commencement of this suit, she had assigned her right of dower to other creditors.
    The defendant objected to the plaintiff’s recovery, on the following grounds : — 1. At the time this suit was commenced, and long after, the defendant was in jail on Whitmore’s execution, which the plaintiff knew ; and while so in jail, the judgment, for the time being, was satisfied, and no action could be brought against her for any thing arising out of that judgment. 2. If any action could be maintained by the plaintiff upon the facts in this case, he could not maintain an action for money had and received. 3. By the indorsement made by Whit-more over Thomas Cushing’s name, the plaintiff was discharged as indorser, and he could not, by a voluntary payment to Whit-more, entitle himself to an action against the defendant.
    
      April 1st,, 1828.
    Peabody, for the defendant,
    in support of the first ground, cited Brinley v. Allen, 3 Mass. R.561 ; Porter v. Ingraham, 10 Mass. R. 90; Little v. The Newburyport Bank, 14 Mass.R. 447; Lyman v. Lyman, 11 Mass. R. 319. As to the second ground, he cited Haskins v. Dunham, Anth. N. P. 81; 1 Chit. Pl 342; Barlow v. Bishop, 1 East, 432; Page v. Bank of Alexandria, 7 Wheat. 37 ; Willis v. Crooker, 1 Pick. 204 It is true that it has been decided in New York, in Pierce v. Crafts, 12 Johns. R. 90, that an action for money had and received lies for the indorsee against the maker of a note, but such cannot be the law where it is proved, as in this case, that in fact no money was had and received. As to the third ground, he cited, Chit, on Bills, 149 ; Smith v. Clark, 1 Esp. R. 180 ; Chaters v. Bell, 4 Esp. R. 210.
    
      March 23d, 1829.
    
      Morse, contra, to show that an action for money had and received lay, cited Wild v. Fisher, 4 Pick. 421.
   Parker C. J.

delivered the opinion of the Court. The first ground taken in defence is, that the defendant being in orison on the execution in favor of Whitmore on a judgment recovered on this note, at the time when this action was commenced, she was not liable to this action. The authorities cited to support this position fall far short of it. The first merely decides, that when an arrest of the body is made on mesne process, estate being attached on the same writ, the attachment or the arrest is void, according to the fact of its being first or last made. Brinley v. Allen, 3 Mass. R. 561. The next case cited, so far as it touches the question, is directly against the position of the defendant.

The present plaintiff was liable as indorser to Whitmore, on whose execution the defendant was in. prison. Nothing would discharge the plaintiff from Whitmore’s claim upon him (admitting no loches) but a satisfaction of the judgment by the defendant. The plaintiff had a right to pay the debt and look to the defendant’s property for his security ; and, which is the second point in the case, had a right to this action of money had and received ; as was decided in the case of Wild v. Fisher, 4 Pick. 421.

It is then insisted, that Whitmore having, when he sued, filled up the indorsement over the name of Cushing, who was the payee and first indorser, all subsequent indorsers were thereby discharged, and therefore the plaintiff paid the money in his own wrong, and having so done, is not entitled to his action against the maker. I have looked at the authorities cited, and do not find that they support this objection. They merely decide, that the holder may strike out all subsequent indorsers and declare upon an indorsement to himself of any one whom he intends to charge, or maintain his action in this way against the acceptor or maker. If he does not strike them out, there seems to be no reason why he should not have recourse to them after he has failed to recover against the one first sued, if they are otherwise liable.

Judgment for plaintiff. 
      
       See Ellsworth v. Brewer, 11 Pick. 316; Olcott v. Rathbone, 5 Wendell, 490; Bayley on Bills (2d Am. edit.), 390 to 392, in notes.
     
      
       See Talbot v. Clark, post,,51.
     