The plaintiff has no just ground of objection to the instructions given to the jury. If he was employed by Payne and Brown to get the control of these notes on their behalf, and for their benefit, he did not thereby become the indorsee or holder of the notes. To claim them in any such capacity would be inconsistent with such agency, and a violation of his trust as such agent. This would be too plain for denial, if he had purchased the notes, or obtained the control of them, with funds placed in his hands by Payne and Brown. It is hardly less so, if he advanced the necessary funds himself on their credit; and it would be on their credit, if he did so at their request or on their behalf. His claim in that case would be only for the money advanced, and not as a party to the notes. If the arrangement was to purchase the notes, to be used in their behalf, such an arrangement would be wholly inconsistent with a claim to use the notes against them. It would make no difference that one of his motives was to improve his own position in a compromise with the creditors of Payne, if the substance of the transaction was an advance of money to Payne, or in his behalf, although the mode in which such advance was made was by a payment on his account to the holder of the notes. For the same reason the instruction requested was properly refused. There is no mode in which the plaintiff could take up the notes for the benefit or in behalf of Payne, and convert himself into an indorsee of the notes and collect them of Payne, as such. The most he could claim would be the amount which he had advanced on his account.
Exceptions overruled.