This case, formerly reported in 4 Gray, 89, again comes before the court, after another trial. The court perceive no occasion to alter or modify any of the opinions therein expressed.
The court then said, substantially, that as Bond, the plaintiff, took this note long after it was overdue, he took it subject to all equities and set-offs, as a note in contemplation of law dishonored. The note had previously come to Doherty, by assignment, though not by indorsement; still such assignment made him holder of the debt; and all sums received by him, whilst so holder of the debt, which in equity and by his relation to others he was properly bound to apply to the payment, must be deemed, as against this plaintiff, to be actual payments on the note; and the declarations of Doherty, whilst he was so holder of the mortgage and debt, were admissible against this plaintiff to prove such payments.
In regard to the subject of damages, we think the directions of the court were not sufficiently explicit, and the verdict for the whole amount of the note was wrong.
It was clearly proved that the plaintiff took this note overdue', and in point of law dishonored; a note for nearly $2000, an collateral security for $1000 only. Having paid value to this amount only, he can recover no more than he has thus paid value for; unless he would be liable over for the difference between what he has thus paid and the original amount of the note. We cannot perceive that any person can have such claim upon him, except Doherty ; and if Doherty had no such claim, *539then the damage ought at most to have been limited to the $1000 advanced by Bond and interest.
We think therefore that the jury should have been instructed, that if they were satisfied that, whilst Doherty was the holder of the debt, he had received moneys of the church applicable to the payment of the note, though not shown exactly how much, and after he had assigned the debt to Bond as collateral security, Doherty had declared that the debt of the church, meaning this note of Bishop Fitzpatrick, had been fully paid, it would be strong, perhaps conclusive, proof against Doherty that he had no longer any interest in the note, and could claim no surplus of Bond, so that the amount of the sum advanced by Bond would be the utmost limit of the plaintifPs claim against Fitzpatrick, and a bar to any verdict for damages above that sum.
If the jury should find from the evidence, independent of such declaration of Doherty, that he, whilst proprietor of the note, had received from rents, contributions, and otherwise, specifically proved, an amount, leaving a less amount due on the note than $1000, such payments would be regular or actual payments in reduction of the note, and the balance only would be the measure of damages. Exceptions sustained.