Fenn v. Dugdale

Bates, Judge, delivered the opinion of the court. The liability of the defendant to the plaintiff is upon the note, and is not caused by a payment for the use or at the request of the defendant. Fenn’s payment to Lucas & Go. was in satisfaction of his own liability as endorser, and not for or on account of the maker of the note ; consequently his demand against Dugdale is not for the sum paid by him, but for the amount of the note which he has reacquired of Lucas & Go. by satisfying them upon his contract created by his endorsement of the note. Fenn’s demand against the estate of Dugdale should have been set out in his notice to the administratrix, as founded upon tire note, and, as that was not done, objection was properly taken to admission in evidence of the note. The transcript of the judgment was also improperly admitted, because it could not show any liability of the defendant to the plaintiff caused by the judgment and its payment. It follows, from the fact that the defendant’s liability is not caused by the satisfaction of the judgment by the plaintiff, that the plaintiff can not recover [583] any costs and expenses incurred by him in and about the suit in which the judgment was rendered. The judgment will be reversed and the cause remanded to the circuit court, where the plaintiff can amend his notice of demand. Judges Bay and Dryden concur.