The plaintiff cannot sustain an action on the note, as that would, in effect, be subdividing the cause of action, and subjecting the defendant to two actions for the same cause. In the case of Hawkins v. Cardy, (1 Lord Raym. 360.) the bill was for 46 pounds, 19 shillings, and it was endorsed to the plaintiff, specially, for 43 pounds, 4 shillings. Upon demurrer, the Court were of opinion, that the declaration was had; for that such *369a personal contract could not be apportioned; and that no person could be made liable to two actions, where, by the contract, he was liable to one only. In the present case, there may be another objection to the plaintiff’s right to recover on the note. He has no title to it; it is the property of the bank until it is fully paid. But I am, also, of opinion, that the plaintiff has a legal and just right to recover on the money count, as for money paid, laid out, and expended for the defendant, at his request. As between these parties, the defendant having directly endorsed the note to the plaintiff, the note itself would be evidence under the count for money had and received, in a suit by the endorsee against Ms immediate endorser. (Chitty on Bills, 190.) As regards the plaintiff, the defendant was under a legal obligation to take up the note, when it became due, and when it was ascertained, that Bostwick, the maker, failed to pay it. It is not questioned, that the plaintiff had a right, when he was called upon by the bank, to pay up the note ; and liad he done so, his remedy against the defendant, either by declaring on the note, or for money had and received, or for money paid, laid out, and expended, would have been clear and perfect. The fact exists, that the plaintiff lias paid 380 dollars on the note, to the holders of it, which the defendant ought to have paid, with a further sum to satisfy it in full. Can the defendant make the objection, that he is subjected, not only to a suit by the plaintiff, but also to a suit by the bank, for the unpaid balance of the note ? It seems to me, that he cannot. If he be allowed to do so, he takes advantage of his own wrong, which is against a maxim of the law. It is not only his duty, but in his power to remove the objection, at once, by paying the balance due to the bank. He will not be subjected to two suits, if he performs his duty. Suppose, the plaintiff is unable to pay any thing more to the bank, is he to lose the money lie has paid ? Suppose, a third person had, at the instance of the defendant, paid to the bank a part of this note, it certainly could not be objected, in a suit brought for the money thus paid, that the defendant would be doubly liable, first for the money paid, and also in a suit on the note by the bank. T. cannot conceive the plaintiff to be hi a different situ»*370tion than the one supposed. He had an implied áuthority, from the relation he stood in to the defendant, to pay the note, or any part of it, in exoneration of the defendant; and the money thus paid would, in judgment of law, be paid for the defendant, and at his instance and request. , It is well settled, that where a party is legally bound to pay the debt of another, and does pay it, he. can recover in an action for money paid, &tc.; (2 Comyn on Cont. 152.) and there need be no special request to pay. On the grounds that the plaintiff has paid 380 dollars, on account of a debt, which was demand-able both from the plaintiff and defendant, but which, as between these parties, the defendant ought to have paid 5 and that the plaintiff himself has not attempted to split up, or subdivide any cause of action he has against the defendant ; that in making the objection, the defendant rests it on his own wrongful act, in not paying the balance due to the bank ; and that if he is exposed to another suit by the bank, he can remove that objection by fulfilling his contract with the plaintiff, I am of the opinion, that the defendant is liable in this action.
The case may be one of the first impression. The cases cited on the argument throw little light upon it, and I have met with none analogous to it. It seems to nie, that there can be but one opinion, upon the principles I have adopted, on the justice of the particular case.
I am of opinion, that the nonsuit ought to be sqt aside, and a new trial granted, with costs, to abide the event of the suit,
Woodworth, J. concurred.
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