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 *423ment. 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 (a) .
Sigourney vs. Lloyd, 8 B. & C. 622. — 3 M. & R. 38. — 3 M. & P. 229.-3 P & J 220. — 5 Bingh. 525.