delivered the opinion of the court.
The plaintiffs sue as holders of a promissory note, subscribed by the defendant, and payable to the order of one Guthrie, and endorsed by him. The defendant admits the execution of the note, but avers that it was drawn solely for the accommodation of Shall, Cantrel & Co., whose names are upon it; that no consideration was received for the same, but that on *483the contrary, that house was, at the time the note was given, and yet -is indebted to the respondent, in a large amount; that Shall, Cantrel & Co. took up the note at its maturity, and that it was not transferred to the plaintiffs, until long after it was due, and is in the hands of the plaintiffs subject to the same defences, which could be made against Shall, Cantrel & Co.
The plaintiffs have appealed from a judgment, dismissing their petition, with costs.
The evidence shows, that the note was transferred long after it was due, and consequently, any equitable or legal defence, of which the defendant might avail himself as against Shall, Cantrel & Co., may be inquired into in the present suit.
It appears that the defendant, being indebted to Shall, ' Cantrel & Co. in account current, gave the note in question, together with another of the same amount, endorsed by Guthrie, not in full liquidation of the account, but to enable them to raise money by negotiating them, and that they were negotiated through the house of Forsythe & Co., at Louisville, who also endorsed them. Not being paid at maturity, they were protested and taken up by Forsythe & Co., who returned the notes to Shall, Cantrel & Co., who reimbursed to.the former, the amount, together with costs of protest and damages. Shall, Cantrel & Co. then charged the present defendant in their account, with the amount paid to'Forsythe & Co., and credited him at the same time with the original amount of the two -notes. The note in contest-in this suit, was afterwards transferred to the present plaintiffs.
This statement of facts shows, that the former part of lhe< defence, to wit: that the note was given without consideration, and merely for the accommodation of Shall, Cantrel & Co., is not sustained by the evidence. The defendant was really indebted to that house at the time, in perhaps a larger sum, and if he had paid the note, he would have been entitled to a credit for that amount on his account. The *484only question, therefore, is, whether when the note was taken up by Forsythe & Co., and remitted to that house, it lost its character as evidence of an existing debt, and merged in the account current, so that Shall, Cantrel and Co. could not have maintained an action on it, independently of the general account to be settled between them and the defendant.
Where the de-debtedto'aeom-aodroialexeeuted uto notes which not in full liqui-count1 but to enable the house to raise money by negoeiating ím™’ passetf1 to his credit, but on being-returned protested, he theiramountand nof thereby no*2 vated, and may a^oiS'^rf/iiol-der, as evidence debt.It is said that as soon as the note was returned, it formed nothing more than an item in the account, and that Shall, ^antre^ & Co. could not transfer a part of that account, so as to divide their action against the defendant; but it is obvious, that at least the note itself formed the best, and Pei'haps exclusive evidence in support of that item, and for that purpose at least, it was still evidence of an existing , , ~ , ,, debt. Such an entry did not amount per se to a novation; *3Ut' ln P°*nt °f fact, the notes, together with the charges of protest, formed the item on the debit side of the account, * . . - while at, the same time Srodes is credited with the two notes on the other side ; so that in effect he is charged with noth-*ü§> more than the charges of protest and damages, to wit: twenty-nine dollars and twenty-four cents on one note, and twentyceight dollars and twenty-three cents on the other; an(j jf that account, as stated, had been finally closed and receipted, it would show the two notes still outstanding, and a judgment for the balance of that account would not bar an action on the two notes.
We are, therefore, of opinion, that the note sued on, is by itself evidence of a debt due, and was still susceptible of being transferred, subject to any offsets to which it would be entitled in the hands of the transferors. The right of the plaintiffs to recover, does not depend upon the will of the transferors, but in our opinion, they ought to recover the amount, except so far as the defendant may prove it has already been extinguished by payments, compensation, or any just credits. But the evidence does not enable us to say how much is really due upon the note, and the case must be -remanded.
*485It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed, that the case be reinstated, and remanded for a new trial; and that the defendant and appellee pay the costs of the appeal.