
    Patriotic Bank, for the use of Lewis Johnson, v. John A. Wilson.
    A person not a party to a note, who takes it up while lying in a bank under protest, and takes a receipt as in payment of the balance due upon the note, cannot, in an action in the name of the bank for his use, recover of the indorser; but if it was a sale or an assignment of the note to him, he may.
    Lewis Johnson was indorser of a note of H. Langley, discounted by the Patriotic Bank, which he could not get renewed because another note of Langley, upon which $>57 were due, was lying under protest in the same bank, indorsed by the defendant, Wilson, in blank; he, therefore, paid the balance due on that note, took it up, and took the following receipt, indorsed thereon : “Balance 56.27. Received the above amount of fifty-six dollars of Lewis Johnson, October IS, 1829. H. T. Weighiman, Cashier.” For which amount the present suit is brought in the name of the bank for his use.
   The Court

(■nem. con.) instructed the jury that if they should be satisfied by the evidence, that the money was received by Mr. Weightman as payment of the note, this suit could not be maintained upon it in the name of the bank; but if they should be of opinion that it was a sale or an assignment of the note, for a valuable consideration, bond fide, then this suit might be maintained in the name of the bank for the use of Mr. Johnson.  