
    S. A. Dunn, for Thomas Washington, vs. Hasting Dial.
    
    The payee of a sealed note assigned it in writing to D. and D. transferred it, by delivery, to W. and guarantied the solvency of the obligor: 'W. sued D. on his guaranty and recovered the amount of the principal of the note without interest: D. paid the judgment, and the obligor paid D. the full amount of the principal and interest of the note: W. then sued the obligor on the note, in the name of the payee: Held, he was not entitled to recover more than the interest.
    
      Before Fkost, J. at Laurens, Fall Term, 1851.
    The report of his Honor, the presiding Judge, is as follows.
    “ This was an action on a sealed note of the defendant, dated January 1, 1847, for $ 183 47, payable to S. A. Dunn or bearer. Dunn assigned the note, by indorsement, to Daniel. Daniel had purchased from Washington, two slaves; and, in part payment, had delivered this note, and another, of one Caldwell, to Washington, and guarantied the solvency of Dial and Caldwell. Washington afterwards brought an action against Daniel on this special assumpsit of Daniel for the solvency of Dial and Caldwell, and recovered the amount of the principal of the two notes, without any interest. The amount of this recovery was paid by Daniel to Washington, who still, however, kept possession of Dial’s note. Dial recently acquired the means of paying his debts, and, a short time before this action was brought, paid to the attorney of Daniel, the full amount of principal and interest due on the note. Dial had full notice, at the time of this payment, that Washington had possession of his note, which he thus paid to Daniel’s attorney.
    
      “ The plaintiff claimed to recover against Dial the whole amount of the note. But it was held that the plaintiff could only recover the balance due after crediting the payment which Daniel had made on the recovery against him. If Daniel had paid the note in full, to Washington, he might have maintained trover against Washington for the note. In such case, the title to the note would have re-vested in Daniel. But since Daniel had paid the note, in part, Washington had an equitable interest in the note, as the holder and transferee of Daniel, only for the balance due on the note, and Dial was protected by his payment to Daniel, from the claim of Washington, except for that balance.
    “ The jury found accordingly.”
    The plaintiff appealed, and now moved for a new trial, on the following ground.
    Because, it is respectfully submitted that the Judge erred in holding that the plaintiff was only entitled to recover the interest due upon the single bill sued on in this action.
    
      Sullivan, for the motion.
    
      Irby & Henderson, contra.
   Curia, per Whitner, J.

The facts of this case are somewhat complicated, but, when correctly apprehended, the equities of the parties, as well as their legal rights, are very apparent, if the case of an ordinary promissory note, transferred by in-dorsement, had been presented, two opinions could net have been entertained as to their respective rights. As amongst such parties, when payment is made to the indorsee by the indorser, no one doubts his right of action against the maker. If the payment is partial, pro tanto, the right is equally indisputable : — as a consequence, such payment by the indorser discharges the maker as to the indorsee, in whole, or in part, as the case may be. Much less could it be contended, if the maker had intermediately refunded to the indorser, that such should not be deemed a proper payment. Even although judgment had been obtained against the maker and the indorser, a payment by the latter would have extinguished the former. Noonan vs. Gray, 1 Bail. 437.

The action before the Court is founded on a single bill, and hence a supposed difference. If transferred by regular assignments, with a guarenty, the rights of the parties would have been the same; and where there are no assignments, the transfers being by delivery, according to our theory, the equities attach, and yet the same result would follow. I mean, of course, as to the particular points involved. This plaintiff stands alone upon his equity. The single hill was assigned by the obligee, Dunn, to Daniel, who transierred, by delivery, to Washington, with a guaranty of the solvency of the obligor, Dial. Washington’s equitable interest entitled him to receive the money, and, according to our cases, to use the name necessary to enforce payment.

If Daniel had paid the entire bill, Washington’s equities would have been thereby discharged and Daniel’s revived, even although Daniel had originally received by delivery only. But Daniel, in fact, had a legal interest in virtue of the assignment, and it is not perceived that his rights are in any way abridged, because he was compelled by suit to do what he should have done voluntarily. He paid the principal of the single bill in question, before this suit was brought. Thereupon, and to that extent, Washington’s equities were met and discharged, and Daniel’s right of action accrued against the obligor, Dial. But before suit brought, Dial paid to Daniel the amount of the single bill, thus anticipating such action by Daniel. He who does voluntarily what the law would compel, must be protected in the act. The equities of Washington entitled him only to such amount as he had not already received. This has been allowed him, and he has nothing remaining on which to stand or of which to complain as growing out of this part of his transaction : — nor can he shelter himself behind the name of the obli-gee, Dunn, or, by that use, enlarge the legal demand of passing the funds through his hands. This is not his position, nor can it be awarded him. The legal interest had been transferred by the assignment to Daniel — an equitable interest only to Wash ington.

The motion for a new trial is refused.

Evans, Warblaw, Frost and Withers, JJ. concurred.

O’Neall, J. absent at the argument.

Motion refused.  