#### Jordan vs. Ford & Dickinson.

A note endorsed to Joseph B. Myers cannot be received in evidence-under a count iii the doclaration describing it as endorsed to Joseph B. Mason. But such note may be given in evidence under the money counts.

A judgment on a note in favor of the last endorsee against the maker and ail the endorsers cannot form the basis of an action by an endorser who has paid the judg. ment, against his prior endorser. But such judgment» evidence, under the money counts, of protests and notice of non-payment;

Notice of protest and non-payment given by the holder of a note to the maker or first endorser will enure to the benefit of all intermediate endorsers. And if the inter, mediate endorser pays the note, he acquires all the rights of the holder, and among others the benefit of the notice.

Appeal from the Circuit Court of Bradley County*

This was an action of assumpsit brought by the appellees against the appellant. The declaration contained four counts. The first,a special count on a promissory note ma'de by Spencer Jackson and payable to the defendant, by whom1 it was endorsed to the plaintiffs, and by them endorsed to Joseph B. Mason; which, was protested for non-payment, and was subsequently paid by the plaintiffs; the second count was upon a judgment rendered in the State of Tennessee in favor of Joseph B. Myers against the maker and all the endorsers of the note with an averment that the judgment had been paid and satisfied by the plaintiffs; the third count was for money laid out, expended and advanced; and the fourth an insimul computassent. The defendant pleaded non-assumpsit, upon which issue was joined, and the case submitted to the court sitting as a jury.

Upon the trial the plaintiffs offered in evidence a note made as described in the declaration, but endorsed to Joseph B. Myers as the last endorsee; to which the defendant objected.- The court rejected the note as evidence under the first count, but permitted it to be given in evidence under the money counts.

The plaintiffs then offered in evidense the record of a judgment rendered in the State of Tennessee in favor of Joseph B. Myers *417against the maker, payee and endorsers of the said note ; and proved by competent testimony the payment by them of $847 43 on said judgment to the attorney of the plaintiff therein. The court sitting as a jury found for the plaintiffs and rendered judgment for the amount by them paid. The defendant moved for a new trial,but the court overruled the motion and he appealed to this court.

Ringo & Thavnall, for the appellant.

The special count on the note was unsupported by the evidence and is therefore out of the case.

A bill or note is only evidence under the money counts between the original parties, Wayman vs. Bend, 1 Cclmp. 175. Williams vs, Allin, 7 Cowen 316, and cannot be received where there is no privity between the parties. Johnson vs. Collings, 1 East 98* Barton vs. Bishop, id. 434. Whetwell vs. Bennet, 3 Bos. Sf Pull 559. Horib vs. Banter, 3 East 177. Bentley vs. Nathans, M. <§• W. 66. Williams vs. Allin, 7 Cow. 174. Cowly vs. Dunlop, 7 Ten. Rep. 579. On the same principle that an action of debt cannot be maintained except between the orginal parties; and not between endorser and remote endorser, or drawer or acceptor Bishop vs. Young, 3 Bos. Sf Pull. 82,83. Simmons vs. Parmenter, 1 TVils. 185. Brown vs. Lendon, Mod. 285. 1 Freem. 14. Gilbert, title Debt, 364. Webb vs. Geddes, 1 Taunton 540. 2 Camp. 187, n. a.

The plaintiffs had assigned the note sued on to Myers. In Gamblin vs. Walker, and Block Sfc. vs. Walker, it has been adjudged by the supreme court that they could not be re-invested without a re-assignment : also in the case of Lafferty vs. Rutherford, 5 Ark. Rep. 650, in Purdy vs. Brown Sf Taylor, 4 Ark. 536, the supreme court say that “ the assignor cannot sue unless he has acquired the legal interest by a new assignment or otherwise.” Meaning, without doubt, that if the first endorser has been compelled to pay and take up the bill, that this will abrogate the endorsement and re-in vest him with legal interest and enable him to sue in his own name. Cowly vs. Dunlop, 7 Tenn. R. 572. Buckingham vs. Buttesant, 3 East 72. Simmonds vs. Parmenter, ubi supra.

*418Conceding this to be the case it is clear that, before the legal interest could be returned, there must be a full payment ,• and partial payment, like a partial assignment, would not change the legal interest. Hubbard vs. Prather fy Smiley, 1 Bibb 75. Simmonds vs. Parmenter, 1 Wils. 185. 1 Saund. PL Ev. 334.

The note sued on was given and negotiated in the State of Tennessee ; what the law of that State is in relation to the liability of these parties is not averred or shown, and therefore it will be presumed that the law is the same as our own.

To make Jordan liable on his endorsement a protest for non-payment and due notice should have been shown. See Statute of assignment, Rev. Stat.

The count on the judgment shows no legal liability in any form or shape, or any consideration on which to base an assumpsit; and if it did, it would have been to the plaintiffs individually and not as partners. The defects in the count are such that statute of Jeofails could not cure them.

But if the count had been sufficient, to support it, the plaintiffs should have proved, first, that they had paid the full amount of the judgment, and second, that due notice of the protest had been given to Jordan, the defendant; and the record of the judgment between other parties could not be evidence of this fact.

Yell, contra.

The law is well settled that if there ai’e several counts in a declaration, the court is bound to receive the' testimony under that count to which it is applicable. And if the court received the testimony it is bound to be read in evidence under the proper count. So we contend that under the special counts and under the money counts the note was admissible.

The money counts are proved prima facie by a promissory note of the defendant given or endorsed to the plaintiff. Johnson vs. Johnson, Minor 263. Kide vs. Debnutz, 1 Hayw. 420. Hughes vs. Wheeler, 8 Cowen 77. Pierce against Crofts, 12 Johnson 90. Counsay vs. Baker, 7 Har. Sf J. 28. Tuney vs. Sanbourn, 5 N. Hamp 557. Jones vs. Canady, 4 Dev. 86. Wild vs. Fisher, 4 Pick-. 421. Cole vs. Cushing, 8 Pick. 48. Penn vs. Flock, 3 Gill *419 Sf John. 369. Page vs. Bank of Alexandria, 7 Whet. 85. See 7 Cranch 500. Ellsworth vs. Breeven, 11 Pick. 320. And by a note payable to bearer in a suit by the holder. Pierce vs. Crofts, 12 John. 90. And by a note of a third person endorsed by the defendant. Eagle Bank vs. Smith, 5 Cowen 71. State Bank vs Hand, 12 Mass. 172. Brown vs. Zoven, Minor 370.

An assigned bond with evidence of suit <fcc. against the endorsee or obligee is proof of money had and received by the assignor of the assignee. McWilliams vs. Smith, 1 Call 123. Where the note of a third person is transferred, and its payment guarantied, it will support the money counts in assumpsit. Butly vs. Haight, 8 Wend. 535. 13 Wend. 535. .

In a special count it is no objection to the admission of evidence that it does not prove the cause of action, if it prove the promise declared on. Wheelock vs. Wheelock, 5 Tern. 433.

In indebitatus assumpsit for money paid to defendant’s use. See Beers vs. Botsford, 3 Day, 159.

General indebitatus assumpsit for money had and received will lie for the assignee of a respondentia — the obligee having beforehand engaged by an endorsement to pay the same to any assignee. Fenner vs. Maines, 2 W. Black. 1269. See Cooper vs. Wrench, 1 D. £ R. 482.

Under the general issue in assumpsit, a judgment recovered for the same cause of action may be given in evidence. 2 id. 377, 2 a 4- p. 403.

Assumpsit is a liberal equitable action and lies wherever by the ties of natural justice and equity — and when no rules of policy or strict law intervenes to prevent — the defendant ought t.o refund the plaintiff’s money and cannot with a good conscience retain it. Irwin vs. Haulon, 10 S. R. 219. Botard vs. Nevins, 6 S. Sf R. 369. Eddy vs. Smith, 13 Wend. 488. Guthrie vs. Hoyutt, 1 Hor. 447. 3 J. J. Marsh. 175. An assignee of a chose in action, to whom the debtor has promised payment may support this action against such debtor. Long vs. Fish.

There need be no privity of contract between the parties in order to support this action, except that which results from one man *420having another’s money, or where the same has been paid to his use. Mason vs. White, 17 Mass. 562. Hall vs. Worston, ib. 579. Dickson vs. Cunningham,, Wort. Sf Yerger 221. 2 Dallas 54.

The evidence in this case by the record, note, &c. clearly shows that this case is governed by the law of Tennessee, and in that State as well as in this State the first endorser is liable before the second; and after the rendition of judgment against the parties it is too late to urge the doctrine of notice, for the judgment is notice to all the parties concerned, and the proof of payment of the execution makes all previous parties to the transaction liable to the party paying the execution. So, if the proof did not sustain the special count or the money counts, the evidence is sufficient on the one judgment to sustain this judgment and therefore the court did right in overruling the motion for new trial.

A bill of exceptions will not lie to the final judgment of the court where the whole case is submitted to the court for decision and a jury dispensed with. White et al. Thiseman 169. Gilmore vs. Dallará, Scammons Rep. Vol. 1, Minios.

If the final judgment rendered is, upon the whole record, authorized by law, no court exercising appellate jurisdiction over the subject will reverse or disturb it though errors and irregularities in the previous proceedings not affecting the merits of the case may appear in the record. Davis vs. Gibson, Ark. R. 115.

Johnson, C. J,

The plaintiffs below in their first count described a note executed by Jackson to Jordan and endorsed by Jordan to themselves and which they endorsed to Joseph B. Mason, by whom they were compelled to take it up. The note produced in evidence under this count does not appear to have been endorsed to Mason as described, but to^Myers, and therefore the court decided correctly in excluding it. The second count sets out a proceeding instituted in the State of Tennessee by Myers against the maker and also the endorsers including the present plaintiffs and a joint judgment rendered against all, upon which an execution was issued, and which execution they allege they satisfied. We think it clear that the judgment in that case and between those parties could not *421furnish the basis of an action between the parties to the present proceeding. But the question arises here whether that judgment did not so far change the relation between the parties upon the note as to make it evidence here against the defendant, without the necessity of another protest or notice of non-payment. It is contended that these parties are not by that proceeding placed upon a like footing with joint judgment debtors and subjected to all the liabilities to each other which would result from a judgment against several co-defendants rendered upon a joint, or joint and several obligation. If such should be the effect it is clear that those who might be compelled to avdance the whole amount would be intitled to recover the whole against the principal, or contribution against a co-security; and in that case the judgment coupled with a receipt or other competent evidence of payment would be admissible to fix the liability of the defendant. The point then to be decided here is, whether the proceeding had in the State of Tennessee and offered in evidence in the court below, could have been received under the count for money paid, laid out and expended for the defendant. It is there shown that Myers the last endorsee, had the note protested, not only against the present plaintiff, but also against the maker and all intermediate endorsers including the present defendant. A notice from the holder or any other party will enure to the benefit of every other party, who stands between the person giving the notice and the person to whom itis given. See Baley on Bills, ch. 7, sec. 2, p. 255, 256, (5th Edit.) Wilson vs. Swaby, 1 Starkie R. 34. Chitty on Bills, ch. 10,p. 527. (8th Edit.) Therefore a notice from the last endorsee to the first endorser will operate as a notice from each of the intermediate endorsers. Story on Promissory notes,p. 350. The principle is now well settled that notice by an . endorser to the drawer or a prior endorser of a bill or note will enure to the benefit of any intervening party. No intervening party can have a claim against the drawer or prior endorser without paying to the party who gave notice, and by doing so he acquires all his rights, and among others, the benefit of the notice given by him. If this doctrine be correct, and that it is we entertain no doubt, it is then clear that it was not incumbent upon the *422present plaintiffs to have given notice to the defendant of the nonpayment or protest of the note. He had already been notified of the protest by Myers who was the last endorsee, and the present plaintiffintervening between those parties and having paid the debt, is entitled to all the benefits resulting from that notice. This question being settled there can be no doubt but that the evidence adduced was fully sufficient to fix the liability of the defendant, and that the court decided correctly in rendering judgment against him for the sum advanced by the plaintiffs. Judgment affirmed,