
    Isaac A. Sims vs. William W. Wilkins, Use of Andrew Gobear.
    U., the payee of anote made by S,, indorsed it to W., by the following indorsement ; “ S. will be so good as to pay the within note to W., and if you cannot pay it, settle it with him, as he may wish you to do for me ; ” U. died a few days after; held, that the indorsement was sufficient to enable W. to maintain an action on the note in his own name.
    Whether such an indorsement be not an absolute assignment of all the payee’s interest in the note, and not a mere restricted indorsement for the benefit of the indorser. Query ?
    
    In error from the circuit court of Jefferson county.
    William W. Wilkins, who sued for the use of Andrew Go-bear, brought his action upon the following note and indorsement, viz.:
    “ $562 50. February 15, 1840.
    
      “ Twelve months after date, I promise to pay Undon five hundred and sixty-two dollars and fifty cents, for value received. Isaac A. Sims.
    
    Isaac R. Wade.”
    Indorsed: “Mr. Sims — Sir, will you be so good as to pay the within note to Mr. W. W. Wilkins, and if you cannot pay it, settle it with him, as he may wish you to do for me.
    
      March 8, 1841. Fosbender Undon.”
    The declaration alleged that the note was assigned, by virtue of this indorsement, to Wiljrins, who accordingly brought his action thereon. It was in proof that Undon, whose real name was Anthony Cooper, died soon after the indorsement to Wilkins. Testimony was offered, by way of set-off, to reduce the sum demanded, but it is not deemed material to notice it.
    The jury found for the plaintiff, and the defendant prosecuted this writ of error.
    
      
      Clark, for plaintiff in error.
    The note in this case is described as assigned, by an indorsement in full, by payee to Wilkins. It is contended that the indorsement, as set out in the first bill of exceptions, is a restrictive indorsement, by which no interest in the note was assigned to Wilkins, but a mere power was given to receive the amount of the note for the payee. Bayley on Bills, 108. Chitty on Bills, 258, 259, and cases there cited. Pay the within to W., or settle it with him “ for me,” is the same as pay W. “ for my use,” or “ for my account.” It constitutes W. an agent, to receive the money or to make a settlement for the payee. The payee died two days after the indorsement (see second bill of exceptions.) His death terminated the agency.
    If suit could be brought in the name of Wilkins, it could only be agreeably to the tenor of the indorsement, for the use of the payee, and not, as in this case, for the use of a stranger. Truttle v. Barandon, 8 Taunt. 100. Sigourney v. Lloyd, 8 Barn. & Cress. 622.
    
      Bullock, for defendant in error.
    The defendant in error must recover under the statute H. & H. 372, sec. 6. “ When any person, &c., shall, by order in writing, signed by his proper hand, direct the payment of any sum or sums of money in the hands'of any other person, &c., the money therein specified shall, by virtue thereof, be due and payable to such person, &c., to whom the same is drawn payable, and may be put in suit, &c., and the amount thereof recovered by him or them, suing for the same,” &c. Again, H. &. H. 173, sec. 12: “All bonds, bills single, obligations, promissory notes, &c., shall and may be assigned by indorsement, whether the same be made payable to the order or assigns of the obligee or payee or not, and the assignee or indor-see shall and may sue in his own name, and maintain an action which the obligee or payee might or could have sued or maintained thereon, previous to assignment,” &c.
    In the case of Black & Pratt v. A. T. McMurty, Walker’s R. 389, it was decided that thq legal interest of a promissory note vests in the assignee.
    
      In Smith, Use, &c. v. Runnells, W. R. 144, it was held, that where a note was specially indorsed, suit must be brought in the name of the indorser. See also in the case of Dugan et al., Executors of Clark, v. United States, 5 Wheat. 173.
    All indorsements, whether in blank or„ special, are orders on the maker of the note to pay the money specified to the holder; and the meaning of such indorsement when in blank is, that the maker of the note must pay (or “ settle ” the amount in said note) to the holder, “as he may request,” for the payee, or instead of paying it to the payee, he must pay it to the indor-see ; “ for me,” means nothing more than instead of me. The word “for” denotes substitution, and might be expressed in place of me, without changing the sense. I am at a loss to discover any difference between the indorsement on the note in controversy and a blank indorsement. I think the point is settled in the cases in Walker's Reports, already cited.
    The negotiability of the note is covered by sec. 12, already cited. H. & H. 373, 374.
    By the 6th sec. of the statute H. & H. 372, another and liberal view might be taken of the point in controversy. The making of the note was evidence, at least, of money in the hands of the drawer, for the use of the payee; and if there had been an understanding between the parties, that the note should not be assigned, the payee would not be bound, by such agreement, from drawing on the maker of the note for the amount acknowledged to be due, particularly when the delivery of the note to the maker follows the payment of the order ; which in this case was upon the back of the note, directing the payment of the money in his hands to be made to Wilkins. Then under the statute last cited, section 6, and the decisions of our supreme court, Wilkins was the proper person to institute suit.
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action of assumpsit, upon a promissory note, brought by the indorsee against the maker. The indorsement is in these words: “ Mr. Sims, will you be so good as to pay the within note to Mr. W. W. Wilkins; and if you cannot pay it, settle it with him as he may wish yon to do for me.” The indorser died a few days after the indorsement.

It is insisted, in argument, that this was a restrictive indorsement, and merely constituted the indorsee an agent to collect for the indorser; that this agency ceased upon the indorser’s death, and that the indorsee cannot maintain an action in his own name. The cases of Sigourney v. Lloyd, 8 Barn. & Cress. 622; 15 Eng. Com. L. R. 322; Truttle v. Barandon, 8 Taunt. 100; 4 Eng. Com. R. 33,—are relied on as authorities in support of the position.

The principle there settled is, that if a third person take an indorsement from an indorsee, whose rights are restricted by the indorsement, such third person takes the paper subject to the state of accounts between the prior parties. Such in-dorsement does not prevent the indorsee from receiving the money, but it has the effect of preventing him from disposing of the bill before it is due, and from pledging it, to relieve himself from his own debts, at the expense of his correspondent. If he collect the money, he becomes responsible to his principal, and the maker is discharged. The legal interest passes by the restrictive indorsement, but it carries notice of a trust upon its face, and a subsequent indorsee takes it, subject to the trust. The legal interest, howev.er, enables the indorsee to recover in his own name.

We doubt, moreover, whether this is a restricted indorsement. It is an order to pay for the indorser, and would imply, jprima facie at least, an indebtedness upon his part to that amount. Bradley v. M'Clellan, 3 Yer. 301. Taken in connexion with the statute in regard to orders, it clearly vested the right of action in Wilkins. H. & H. 372, sec. 6.

If Wilkins be a mere trustee for the indorser, then he is re-‘ sponsible to his representatives.

We see no error in the judgment, and the same is hereby affirmed.  