¶1In this case, the court instructed the jury, that, upon the facts admitted by the parties, and claimed by the plaintiff to have been proved, the defendants were entitled to a verdict in their favour. This instruction would have been right, had Dunham been liable only upon the note in suit, and purchased it with the funds of Plumb.
¶2But the claim made by the plaintiff on the trial, presents a different case. There is nothing stated in the motion, which shews, that Dunham had not a right to become the purchaser. Neither his situation as an endorser, nor the fact that Mrs. Yale signed the note as a surety of Plumb, will vary that right. Had he bought the note and paid his own money for it, he could have maintained a suit upon it, for his own benefit. The note not being negotiable, such suit must necessarily have been brought in the name of Norton, the payee.
¶3The legal effect of the instrument is, that Plumb and Mrs. Yale are jointly and severally bound to pay Norton the sum specified in the note. That obligation is no more affected, by a mere sale to Dunham, than if made to any other person.
¶4Suppose Plumb had pledged the Wilcox note to Dunham, to indemnify him against his endorsement of the two notes to Webster and Powers only; and then Dunham had with it *517purchased the note in suit; what would have been the effect? Clearly, he would be bound to pay those two notes with his - own funds. Having appropriated the pledge to his own use, he would be required to discharge the debts on account of which the pledge was given, — to the amount of the pledge.
¶5Now, the claim of the plaintiff is, that the Wilcox note was pledged to Dunham, to secure him, not only against his liability to Norton, but against his liability to Webster and Powers. It was insufficient to satisfy all these liabilities ; and it does not appear that any direction was given by Plumb, as to the note or notes which should first be paid. Dunham had, therefore, a right to make the application as he pleased. Fairchild & al. v. Holley & al. 10 Conn. Rep. 179. Bodenham & al. v. Purchas, 2 B. & A. 45. Bosanquet & al. v. Wray & al. 6 Taun. 597. United States v. Kirkpatrick & al. 9 Wheat. 720.
¶6He had a right to apply the Wilcox note, first in discharge of his liabilities to Webster and Powers ; and then, if he paid his own money to Norton, to discharge his liability to him, he might sustain an action against these defendants, for money paid for their use and benefit. The fact that the pledge had been given him, and that he had applied it in discharge of his other liabilities, would have furnished these defendants with no defence to such action.
¶7While this pledge is in the hands of Dunham, and his right as to the application remains, an agreement is made.between him and Plumb, that this right shall be relinquished ; that, with the pledge, Dunham shall purchase the note in suit, and hold it in the same manner as he held the other ; that is, as security for his liability to Webster and Powers. Plumb, being a party to this arrangement, cannot complain. Nor has any injustice been done him.
¶8But it is said, that Mrs. Yale had no knowledge of this arrangement, and never assented to it. But how has she been injured by it ? The pledge was made by Plumb; and, after it was so made, she had no power to controul the application, further than to require that it should be applied upon some of the liabilities to the full amount of it. If Dunham had a right, without her knowledge or consent, to apply the pledge in discharge of his liabilities to Webster and Norton, and then call upon these defendants to indemnify him against his liabil*518ity upon the note executed by them, then, by the arrangement, no injustice has been done Mrs. Yale. The plaintiff claims to recover no more for the benefit of Dunham’s estate, than could have been recovered against her, if no such arrangement had ever been made.
¶9We think that the purchase of the note in suit, with the note of Wilcox, under the circumstances stated in the claim made by the plaintiff, did not necessarily operate as payment; and consequently, that a new trial must be granted.
¶10New trial to be granted.