dissented. The contract of an endorser is, that -if the drawer does not pay the note when due, and presented, then (if not discharged by want of due notice) the endorser will pay it to the legal holder ; and, I understand the law to be, that no party, who has negotiated the note, can ever maintain an action on it, until he regains it, or entitles himself to it, by paying the note. The contract .is entire; it cannot be split up, so as to give a right of action to each of the subsequent endorsers, who may have made partial payments on *371the note; at least, so long as the note remains outstanding and unsatisfied. When the second endorser demands payment of the first endorser, he must be in a situation to re-assign and deliver up the note j so that the first endorser may seek his remedy upon it. If the note be not delivered back, it may be put in further circulation j so that the first endorser may be compelled to -pay it twice. He might, in’deed, protect himself, by proving, that the note was overdue when last assigned; but the second endorser has no right to impose the burthen of such proof on the first endorser.
In this case, the note was unpaid, in the hands of the bank, when the suit was commenced by the second endorser ; and so far as I can discover, it would he an entire novelty to sustain this action. In such a case, of every day’s occurrence, the silence of Westminster Mall is emphatic against the plaintiff’s claim.
The contract being special, on the part of the endorser, the plaintiff cannot vary or dispense with the terms of it, and resort to his general counts. It may be, that if the second endorser has paid and taken up the note, he may then maintain an action for money had and received, against the first endorser. (Bayley on Bills, 96. note. Pierce v. Crafts, 12 Johns. Rep. 90.) The note, then, in his own hands, ready to be delivered up, may be evidence of money lent, as against the first endorser; but that is not the case before us. I am, therefore, of opinion, that the rule for nonsuit ought to be made absolute.
Motion to set aside nonsuit granted.