The plaintiffs must become nonsuit. They can recover nothing upon the count on the promissory note nor upon the count for money paid.

1. They cannot recover upon the note. They paid the note as the legal representatives of Samuel Putnam, who, by an agreement in writing, had guarantied the payment of the notes and drafts discounted by the bank for Fowler & Co. Upon payment they became substituted to the rights of Fowler & Co. They were not purchasers without notice before the maturity of the note, so as to have other or higher claim against the makers than Fowler & Co., the promisees, would have had. When the court said, in Washington Bank v. Shurtleff, 4 Met. 34, that the holders of a note paid by the guarantor would be bound to deliver the note to him to his use, they did not mean that he would be substituted to the rights of the last holder and payee. He would be entitled to the note as evidence of his payment. Beyond this, it is not easy to see for what useful purpose he is substituted to the rights of him for whom he pays. The facts clearly show that Fowler & Co. could not have recovered upon this note against the defendant, for the consideration of the note had failed.

2. The plaintiffs cannot recover upon the count for money paid.- The money was not paid at the request of the defendant or for his use, but at the request of Fowler & Co. and for their use, and in discharge of the plaintiffs’ testator’s written obligation to save the bank harmless. Plaintiffs nonsuit.