
    Thomas Wilson versus Joseph Holmes, Jun.
    A oil! of exchange was endorsed thus, “Pay T. or order, for our use, value received, in account.” The payee had given an obligation to the drawer to pay the amount of the bill, when that should appear to have been paid, and in case of its being dishonored, it was to be exchanged for the obligation; the drawer paying the expenses of protest, &c. In an action upon the bill by the endorsee against the drawer, it was held that this evidence was properly given to the jury, and that the defendant was not liable.
    The plaintiff declares in case, on a bill of exchange for 450?. sterling, drawn by the defendant on William Lees, payable to Benson, Abbott &/■ Briggs, or their order, and by them endorsed to the plaintiff, which had been protested and returned unpaid.
    The action was pending in Plymouth, and at the trial before Sew~ all, J., at the last May term in that county, upon the general issue, the bill of exchange, the protest and notice to the defendant, were regularly proved. The endorsement was in this form: “ Pay Thomas Wilson, Esq., or order, for our use, value received in account.' Benson, Abbott &, Briggs.” The defendant was permitted to give in evidence a counter obligation of the payees, of even date with the bill, whereby they acknowledged the receipt of the bill, [ * 544 ] for which they * oblige themselves to pay the defendant 2000 dollars in foreign money on demand, any time after advice of the bill’s being paid, and that it was understood that the bill was subject to no damages, and if returned should be exchanged for the obligation, the said Holmes paying expenses of protest, &c.
    Upon this evidence the jury were directed to find a verdict for the defendant, and they found accordingly, subject to the opinion of the Court upon the case thus reserved.
    
      Bidwell, Attorney-General, for the plaintiff
    in moving for a new trial, at Plymouth, the last week, contended that the evidence was improperly admitted as between these parties. The bill was not over due, when it was negotiated. Any agreement then between the drawer and the payees can have no effect on the present action. The endorsement in this case shows an absolute sale of the bill, and the special manner of the endorsement amounts to no more than “ pay to A. B. at his risk.” The words “ value received” are sufficient to show the transaction a sale, and not a mere authority. If the defendant pays the money to the plaintiff, he may indemnify himself on the obligation of the payees, for which purpose it was given him.
    The defendant’s counsel were stopped by the Court.
   The action was continued nisi, and at this term the opinion of the Court was delivered by

Parsons, C. J.

On the evidence in this case, if properly admitted against Wilson, the endorsee, the verdict unquestionably was right. The only question is whether or not this evidence ought to have gone to the jury.

If Wilson had been a bona fide purchaser of the bill, for a valuable consideration, and without notice of the agreement between the drawer and the payees, the evidence would have been improper for he ought not to suffer by any agreement, of which [ * 545 ] he was not knowing, * which was repugnant to the lega.

effect of the tenor of the bill, and of the endorsement. But if the action had been sued by the payees for their own benefit, it is very clear that their own agreement might have been given in evidence against them by the drawer.

The merits of this question, therefore, depend on the interest which Wilson, the plaintiff, had in this bill. His right to put the bill in suit in his own name, must depend on the effect of the endorse ment. It is expressly made to him for the use of the payees. Upon this endorsement, had there been no acknowledgment of value received in account, Wilson would have no property in the bill, general or special, and he could not recover upon it in his own name. But admitting that by the acknowledgment of “ value received in account,” it is the usage of merchants to consider the bill as transfer red to the endorsee, as the factor of the endorser, who may sue it, either in his own name, or in the name of the endorser, of which admission we give no opinion ; yet the same facts may be given in evidence against the factor as against the principal. And Wilson appearing in this case to have no property, unless as a mere factor, the evidence was properly admitted, the direction of the judge, and the verdict in conformity to that direction are right, and a new trial cannot be granted.

Thomas and Sfproat, for the defendant.

Judgment according to verdict . 
      
      
         Sigourney vs. Lloyd, 8 B. & C. 622. — 3 M. & R. 38. — 3 M. & P. 229.-3 P & J 220. — 5 Bingh. 525.
     