delivered the opinion of the Court.
The promissory note on which the suit was brought, was drawn by the appellant, David Williamson, in favor of Wilson Williamson, & Co. and by them endorsed to the appellees, S. M. Allen, & Co. The note appears to have been drawn for the accommodation of Wilson, Williamson, Co. and to enable them to raise money upon it. At the time of the endorsement by Wilson, Williamson & Co. the endorsees, S. & M. Allen, Co. the appellees, advanced to them the full amount of the note, which not being paid at maturity, they brought suit against the drawer, which was entered on the docket for tine use of George Riston. When S. & M. Allen, & Co. advanced the money on the note to Wilson, Williamson Co. George llislon was present, and pledged his word to them, that if the note was not paid at maturity, by the maker, or endorsers, he would pay it; and did after the institution of the suit, pay to them the amount of the note. The entry on the docket, “ for the use of George Riston,” was made on the 25th of November, 1827, only three or four days before the trial. The amount so paid by Riston, was in different sums, and at different times, the receipt given to him for which, by S. & M. Allen, & Co. is dated the 19th of February, 1827, when the last was paid, and concludes in these words, (after stating the different sums paid,) “ which is in full of a note, held by us against D. 'Williamson, for (5 3500, which note is now in suit, and the proceeds of the same properly belonging to said RistonAnd in an answer by Fowler, one of the firm of £ü. fy M. Alien, fy Co. to a bill of discovery filed pending the suit at law, by David Williamson, it is alleged that in consideration of the payment by llislon, “ he is now entitled to the beneficial interest in the note,” and that 8. Allen, fy Co. have no other interest in the note,, than what arises from an obligation to prosecute the suit to final judgment for his use and benefit. This answer and receipt, which is made an exhibit and referred to in the answer, were offered in evidence by David *354Williamson, the appellant, and furnished the only evidence in the case relating to the payment by Riston, and the interest he acquired in the note.
In this state of facts it is contended, that the note and the interest of S. 8f M. Allen, fy Co. the appellees, therein, were extinguished by the payment to them of the amount, and that he was not entitled to recover, or if entitled at all, that he was not entitled to recover more than nominal damages. Admitting that if the whole amount of the principal and interest of the note, was paid to the appellees by the appellant, or by Riston, for, and on his account, and as his agent after the bringing of the action, they were not entitled to recover more than nominal damages; yet there is nothing appearing in the record, that would have justified the Court, in instructing the jury either, that the appellees were not entitled to recover, or that they Were only entitled to recover nominal damages, as was prayed at the trial, and is insisted on here; which would have been to assume the fact, that the payment was by the appellant, or by Riston, as his agent in discharge of the note. For if the payment was not made by him, or his agent in discharge of the note, or with that intention, it does not necessarily follow, that it was thereby extinguished. Riston or any body else might have purchased it, without taking an endorsement by the appellees, as well after as before suit brought, which is not understood to. be denied; and thus have acquired the beneficial interest, whilst the legal title remained in the appellees. And if Riston did purchase it, or advance the money upon it, not -on account of, or as the agent of the appellants, and for the purpose of discharging it; but on his own account, and with the intention of acquiring the beneficial interest, and suffering the legal title to remain in the appellees, for. the purpose of carrying on the suit, which he had a right to do, the note was not thereby extinguished, but remained in force, and no injury was done to appellant, who was not thereby deprived of any defence, that he would have had against the appellees, if no such *355transaction had taken place, and they had gone on to trial, as the legal and equitable holders. If Riston had purchased the note, or the beneficial interest therein, before the institution of the suit, but after it had reached maturity, without taking an endorsement, he could not have sued in his own name, but in the name only of the appellees, in in whom the legal title remained for his use, subject to all the equities of the appellant, as against the appellees. And in this respect it makes no difference, when the purchase is made, whether before or after the bringing of the suit, the rights of the defendant being no more affected in the one case than the other. In the case of a purchase before suit brought, the entry for the use of the purchaser, if made at all, (which is not necessary for the purpose of carrying on the suit,) may as well be made at any time after, as at the time of bringing the suit, and it is as' difficult to perceive why such purchase may not be made as well after, as before a suit is brought. For the principle here assumed, that the purchase of a promisory note, or the payment of the amount to the holder, not by the maker, nor on his account, nor with the intention to discharge it, but with a view of acquiring the beneficial interest in it, does not extinguish the note, whether made before, or after suit brought, but if made before and without endorsement, that suit may be brought in the name of him, in whom, the legal title remains, for the use of him, who has thus acquired the beneficial interest, or if after suit brought, that the suit may be carried on in the name of the original plaintiff, for his use, and that the defendant can take no advantage of it, it is quite sufficient to refer only to Gray and Biddle, vs. Wood and Wife, 2 Harr. and Johns. 328. Mechanics Bank vs. Hazard, 13 Johns. Rep. 353. And Merryman vs. The State, 5 Harr. and Johns. 423. The circumstance urged in the argument that Riston was present, when the note was endorsed to the appellees, and said if it was not paid at maturity, by the maker or endorsers, he would pay it, can have no influence upon the decision of this cause. That *356pledge, if it can be so called, was made, for any thing appearing in the record, without consideration, and placed him under no obligation to pay it. The money then was not paid by the appellant; and if it was not paid by Riston on his account, or as his agent, nor with the intention to discharge the note, but with a view of acquiring the beneficial interest himself and that the suit should be prosecuted for his use, there is no pretence that the appellees were not entitled to recover, or only entitled to recover nominal damages, though only nominal parties, ■ and Riston the real party in interest to the suit.
Is there then any thing in the record to show,, or from which a jury could infer, that it was paid by Riston, on the appellant’s account, or as his agent, with a view to discharge the note, and not with the intention to acquire the beneficial interest himself? To say nothing of the evidence furnished by the answer of Fowler, one of the appellees, to the bill of discovery by the appellant, “ that Riston, by paying the amount of the note, had entitled himself to the beneficial interest of it,” and that the appellees “ had no other interest in the note, than what arose from an obligation, to prosecute the suit to final judgment, for his use and benefit,” the receipt of the appellees to Riston for the amount paid by him, which, with the answer of Fowler, is the only evidence in the cause, in relation to that subject, and that too produced by the appellant himself,-speaks a language not to be misunderstood. It is this “in full of a note held by us against D. Williamson for $2500, which note is now in suit, and the proceeds of the same properly belonging to said Riston.” The proceeds of the note could not have belonged to Riston, unless he had acquired the beneficial interest in it; and if he paid the money to the appellees, for and on account of the appellant, and with the intention to discharge the note, it would thereby have been extinguished, and he neither could nor intend to have acquired any beneficial interest in it. The proceeds then of the note, could only properly have belonged to Riston, as stated in the receipt, on the *357ground that he paid the money, not for the appellant, or as his agent, but on his own account, and thereby entitled himself to the beneficial interest in the note, with the right to pursue it in the name of the appellees.
Thus it appears from the appellant’s own showing, that the payment of the money was not made by him, nor by his agent in his behalf. He therefore could not in any manner avail himself of it.
JUDGMENT AFFIRMED.