Ross, J.: Plaintiff and defendant were sureties on a certain promissory note, executed by one Worland to one Montgomery. Worland became embarrassed, and to protect them from loss as far as possible, proposed to convey to plaintiff and defendant certain land. It was finally agreed between the parties that Worland should convey the land to the defendant, and that the latter should start Worland in the sheep business, and that the first money defendant realized from the sheep he should apply to the payment of the Montgomery note.

The land was accordingly conveyed to the defendant, and he started Worland in the business. Defendant subsequently realized money from the sheep, but failed to apply it on the note. The result was that Montgomery commenced suit on the note, and the plaintiff had to pay thereon two thousand nine hundred and eight dollars, in gold coin, and the defendant a like sum.

Plaintiff thereupon commenced the present action against the defendant, to recover the sum so paid by Mm, alleging that he had paid the money to and for the use and benefit of the defendant, and at his request, and that the latter agreed to repay the same out of the amount realized from the sheep, which amount he had realized, but had not paid. Having received the money to pay the debt, defendant could not in conscience, and ought not in law, to keep it. And, as substantially said in a similar case (Draughan v.

Bunting, 9 Ired. 13), the plaintiff, who was forced to pay Montgomery, can truly allege that he has paid money which the defendant was under legal liability to pay, in consequence of the receipt of the money, and this, according to the authorities, gives him the equitable action, as it is termed, for money paid to the use of defendant. (See, also, Twyne’s Case, Smith’s Leading Cases, 1st vol. 55, note and cases there cited; 2 Greenl. Ev. § 114.) Other points are made for appellant, but we think them untenable. Judgment and order affirmed. Myrick and McKihstry, JJ., concurred.