#### H. H. Stewart and Silas Cooper *v.*C. M. Vaughan.

In the case of *cosureties,*who pay the debt of their principal, the general rule is, that each must sue for the amount paid by him ; and if they were to join, their interest generally being several, they would fail. But, where the debt of the principal has been paid out of *a. joint fund,*or by the *joint credit*of the sureties, then, the payment being a joint act and creating a joint interest, they may sustain an action against the principal, in their joint names.

Where *cosureties*pay the debt of their principal, by *there joint*and *several note,*such payment is equivalent to a payment by a common fund, or *money,*belonging to both, and gives a joint right of action to *both,*against the principal, to recover over from him the amount so paid.

*Before O’NEALL,*/., *at*Abbeville, *Fall Term,*1838.

The plaintiffs were the sureties of the defendant, in a promissory note, to Mr. James S. Wilson. They were requested to pay it (perhaps sued). They gave to Mr. Wilson their joint and several promissory note for the balance due, which he accepted as payment, and gave up to them the original note. They brought jointly this action, by way of summary process, to recover the sum so paid. A motion was made for a nonsuit, on the ground that their cause of action was several and not joint. The presiding judge inclined to take that view; but after hearing Mr. Martin, and considering the authorities to which he referred, (1 C. P. 8, 5 E. 225,) was induced to change his first opinion : the motion for non-suit was then overruled, and a decree given for the plaintiffs. The defendant appealed from this decision, and now renews his motion for a nonsuit, on the ground that the note of the plaintiffs, with which the note to Wilson was paid, was the several note of the plaintiffs, and the payment was not made with the joint fund of the plaintiffs.

Cukia, per O’Neall, J.

The general rule is, that the Court *“*will not take cognizance of distinct and separate claims or lia*34bilities of different persons in one suit, though standing in the same relative situation,” 1 C. P. 8. In the case of sureties who pay the debt of their principal, the general rule is that each must sue for the amount paid by him : and if they were to join, their interest generally being several, they would fail. But, to this rule there seems to be this exception, if the debt of the principal has been paid out of a joint fund, or by the joint credit of the sureties, then the payment being a joint act, and joint interest, they may sustain an action in their joint names, 1 C. P. 8-9; 5 E. 225.

This exception has not been disputed on the present occasion: but it has been contended that this case does not come within it. The payment on which the plaintiffs proceed, was by their joint and several note. In cases of a *joint*interest or *liability,*the interest or liability is in or for the whole thing or sum. This interest or liability being thus inseparable, makes the parties one in court. Here let it be asked, first, what liabilities have the plaintiffs incurred by paying the defendant’s debt by their joint and several note *1*The payee may treat it, as joint or several as he may choose :he may collect it in equal moieties from each, or he may collect the whole from either. This shows that, to all legal purposes, it was a payment by their joint liability, and of course, by their joint credit. Let it now be asked, what is their legal interest arising out of the payment so made ? The note with which it is made is the note of both, or either, for the whole sum contained in it; this makes it the common fund of both. I can perceive no difference between it and money belonging to both. When received as payment, it is considered *quasi*money; and hence, is the payment of both, out of a joint fund. If, on their joint note, the money had been borrowed, and the debt paid with it, the case from 5 E. 225, would have been conceded to be a direct authority for the maintenance of the suit. What is the difference ? The debt has been paid by their joint note, without the circuity of borrowing the money. But the analogy of the case from 5 E, 225, is perfect to this view of this case. For, in legal effect, Wilson, the payee, may be regarded as loaning to these plaintiffs the money, upon their joint and several note, for which they were the defendant’s securities. This view is strengthened by the fact, that the note of *35their principal, when their note was accepted as payment, was delivered to them; thus making it their joint property. — The motion is dismissed.

*Burt*and *Thompson,*for the motion.

*Martin,*contra.

Gantt, Evans, Richardson, and Butler, Justices, concurred.