
    Watson v. Cunningham.
    
      <&. and B. resident in this state being at New-Orleans, the latter sued the former there on his indorsement of a note, which the maker had failed to pay when due. On being served with process, Jl. paid the money, and after his return sued B. in order to recover it hack. Held, that he had no right of action.
    ERROR to the Harrison Circuit Court.
   Scott, J.

Davis made a note payable to Cunningham, the present defendant; which note was indorsed by Cunningham to the plaintiff,' Watson. Davis foiled to. pay the money when due. Watson brought suit in the city of .IVew-Orleans against Cunning-Mam, who, on being served with process, paid the amount without resisting the claim of Walson, and on his return brought suit in the Circuit Court to recover back the money thus paid; alleging that.it was paid through mistake and ignorance, and that, an undue advantage had been taken of his situation.- By a bill of exceptions,- incorporated with the record, we are informed that the plaintiffin the Circuit Court gave evidence of the existence of the note given by Davis to Cunningham; of the transfer by Cunningham to Walson before the note became due; of the commencement of a suit by Watson against Cunningham at the city of Jfew-Orleans, better than two years after the note was made pay-, able-; of the payment by- Cunningham without resistance;- that the parties reside in this state, except Davis who resides in the low country; and that no attempt had ever been made to re'co-. ver the amount of the note by a suit at law against Davis. On this evidence the jury found for the plaintiff.' The defendant then moved for a new trial, which the Court refused and gave judgment on the verdict.

W@ are not informed where the note was. executed, where the indorsement was made, or what was the law of the state of Louisiana on the subject of negotiable paper. But, be that as it may, we are clearly of opinion that the evidence in this case was-not sufficient to entitle the plaintiff to a verdict If, on the failure jjjaher of the note to pay the amount at the time stipulated, the indorser became liable, Cunningham could have no pretext for bringing this action. If, on the other hand, the indorsee, in order to have recourse against the indorser, was bound to use due diligence by a suit at law against the maker, still, as he thought proper to settle the matter with Watson without resistance, he had a right to do so. He could take up the.note and look to the maker for payrrient, but could have no colour of claim to recover the money back by an action against the indorsee. The verdict is unsupported by evidence, and a new trial ought to have been granted.

Moore and Payne, for the plaintiff.

Kelson, for the defendant.

Per Curiam.

The judgment is reversed, and the verdict set aside, with costs. Cause remanded, &c.  