
    James R. Blundell, use of Edward G. McKee, vs. Henry Vaughan.
    The nominal plaintiff being the payee of ,a note, who sues for the use of the holder, is, if willing to testify, a competent witness for the defendant.
    
      On the trial of an action against the maker of a note, brought by the nominal plaintiiffor the use of a third party, the nominal plaintiff testified that he presented the note to one of the makers, who gave him a letter, that he did not see, to the usee, and upon the reading thereof, the usee paid him the amount of the note, and thereupon he wrote a receipt on the note, of that sum from the usee, and gave the usee the note, there being at the time no contract of sale of the note, other than this payment of the money ; held, that the note was thereby paid, and the action could not be maintained upon it.
    In error from the circuit court of Yazoo county; Hon. Robert C. Perry, judge.
    James R. Blundell, use of Edward G. McKee, sued Henry Yaughan in an action of assumpsit on a promissory note made by one S. M. Boylan (who died before the suit was brought) and Vaughan, payable to Blundell, for $500, on which note was the following indorsement: “Received of the within five hundred dollars from E. G. McKee. Benton, Jan’y 18th, 1846.” The defendant plead non-assumpsit and payment. On each of which issue was taken.
    On the trial of the cause at the November term, 1846, the defendant introduced Blundell, the nominal plaintiff, as a witness, who proved that some time in January, 1846, and while he was the owner of the note sued on, he called upon Boylan for its payment; Boylan gave him a paper directed to McKee, witness did not see the contents of it; afterwards, upon presentation to McKee of said paper, McKee paid witness $500, which he received as a payment on said note. McKee took the note and requested witness to make the indorsement on it.
    The counsel for the plaintiff then asked the court for the following instructions, viz:
    1. That the possession of the note sued on by the usee, McKee, is prima facie evidence of title to it.'
    2. That whether the payment of the money by McKee was intended as a payment of the note, or a purchase of it, was a question of fact for the jury to determine. Which instructions were given.
    The counsel for the defendant then asked the following instructions :
    
      1. That, if they believed from the evidence that the note sued on was paid either by Boylan, McKee, or any other person, the law is for the defendant.
    2. That the receipt indorsed on the back of the note does not, in law, of itself operate as an assignment of said note to McKee.
    3. That to entitle the plaintiff, McKee, to recover in this case, they must believe from the evidence, that McKee purchased said note from Blundell, and that Blundell transferred or delivered said note to McKee as purchaser thereof, and that the money which passed was not intended or received by Blundell as a payment on said note. Which the court gave. The jury retired, and brought in a verdict for plaintiff. The defendant then moved for a new trial, “ because the verdict of the jury was contrary to law and evidence, and the instructions of the court,” which the court granted, and plaintiff’s counsel excepted.
    . At the May term, 1847, the cause again came on for trial. Defendant withdrew the plea of non-assumpsit. Plaintiff gave the note sued on, with the indorsement, in evidence, and rested his case. Defendant’s counsel called Blundell, the nominal plaintiff, as a witness, which was objected to on the part of the plaintiff, but the objection was overruled. Blundell testified, that he called upon S. M. Boylan for payment of the note sued on, who gave him an order to E. G. McKee, the plaintiff; that upon presenting it to McKee, (witness did not read it,) he told him he had not the money, at first, but afterwards paid him a portion of it, and gave him an order on Robt. Fisher for the balance, amounting in all to $500. There was no contract between witness and McKee, by which McKee was to be purchaser of said note; the indorsement on the note was made at the particular request of McKee ; the balance on said note was charged on plaintiff’s books to Boylan; and that witness was credited with the amount; that Boylan was frequently, almost every day, in the town of Benton, where McKee lived, but that he did not know that McKee had ever been out of possession of said note; that Boylan and Vaughan were in possession of a large amount of property, and McKee’s circumstances were limited; witness received the $500 from McKee and Fisher as a payment on the note, and that the note was fully paid to him as he considered; that he never made any contract with McKee for the sale of said note.
    The court ‘then instructed the jury, that “ they were the judges of the fact whether the money paid on the note sued on was intended as a payment, or a purchase of said note by said McKee; and further, that the possession of the note sued on by McKee was prima facie evidence of property.” The jury returned a verdict for defendant. Plaintiffs then moved for a new trial, because the verdict was contrary to law and evidence, which was refused. Plaintiff excepted, and sued out this writ of error.
    
      Miles and Battaile, for plaintiff in error,
    ■ Cited Leflore v. Justice, IS. &M. 381; 4How. 11, 328, 338; 31b. 219; 3 Caine’s R. 14; 1 How. 519, 520; Morris v. Lake, 9 S. & M.. 521; Chit, on Bills, 250, 542; Bayley on Bills, 328, 450; Chitty, 426, 543; 1 Term Rep. 17, 21, 22; 8 lb. 310, 311; 1 H. BI. 83-91; Chit, on Bills, 543, notes (e) and (d); 7 How. 609; Moore v. Ayres, 5 S. & M. 310; 7 How. 255.
    
      R. ¡S. Holt, for defendant in error,
    Cited Smith v. Elder, 7 S. & M. 507.
   Mr. Justice Thachek

delivered the opinion of the court.

This is an action of assumpsit instituted by Blundell for the use of McKee against Yaughan, upon a promissory note made by Boylan and Vaughan, payable to Blundell. There were two, trials; the first of which resulted in a verdict for the plaintiff, and the latter for the defendant.'

. Upon the first trial, Blundell testified, that after the maturity of the note he called upon Boylan for its payment, who gave him a paper addressed to McKee, whose contents he did not see, and upon its presentation McKee paid him $500, which he received as a payment of the note, and at McKee’s request he receipted on the note as follows: “ Rec’d of the within five hundred dollars from E. G. McKee.”

The question is, whether from the evidence the jury were warranted in considering the transaction between Blundell' and McKee, as a purchase of the note by the latter. Blundell is very distinct that there was no contract of sale on liis part of the note, and his receipt upon the note accords with his testimony. The jury found, on this trial, for the plaintiff, without testimony and against the evidence, and a new trial was properly awarded.

Upon the 'second trial, Blundell was again a witness, and being willing to testify, was competent, as we have held. His testimony was the same in effect as upon the first trial. He repeated, “ that there was no contract between him and McKee by which McKee was to be purchaser of the note.” The evidence disclosed only a payment of the note by McKee as the agent for that purpose of Boylan, or the debtor, to whom he may look in another form of action. Coopwood, use, &c. v. Foster. [See post.]

Judgment affirmed.”  