delivered the opinion of the Court. The question is, whether the defendant may be allowed to set off against his acceptance a judgment for $ 155-73 recovered in 1819 by Coolidge, Deblois & Co., and the interest, which judgment was assigned by them to the defendant in 1820, when they failed.
It is contended for the defendant, that the acceptance being special, viz. to pay the balance that should be in his hands, upon its face imported and notified the holder that the defendant was to deduct from the money he should receive, not only his account for services in the collection, but any legal or equitable claim that he had or might have against the drawer
The case finds that the drawer was entitled to a share of the estate of Joseph Peters deceased. The defendant was the agent of the heirs to collect the money belonging to the estate. Alexander Peters (the drawer) was then embarrassed with old debts, and he had also contracted debts recently *339He represented to the defendant, that he was desirous to retain the control of his share of this property, saying expressly that he could not pay his old debts. His intent evidently was, to give a preference to some of his creditors over others. That was a legal right which he might exercise if he pleased. He frankly disclosed these views to the defendant, when the following mode of carrying them into effect was adopted. A negotiable bill was drawn, and accepted by the defendant, payable to the plaintiff or order, “for $ 1700 or whatever the balance of money that then was or should come to the hands of the defendant for account of Alexander Peters out of the estate of Joseph Peters deceased.” And the defendant accepted the bill, to pay the balance when received.
The case finds that nothing was then said by the defendant to Alexander Peters about the judgment which the defendant now claims to have allowed. It was then more than ten years old, and would come within the description of the debts which the drawer thought and declared, he could not pay.
It is very clear that, if an action had been brought by or in the names of Coolidge, Deblois & Co., against Alexander Peters, and the defendant had been summoned as trustee, he could not have been held, after having accepted this negotiable bill or order.
And the plaintiff now contends, that if the defendant had informed Alexander Peters that this old judgment must be deducted, he would not have employed the defendant to aid in the proposed arrangement, but would have resorted to other means and to other counsel to effect his purpose.
If this suit were brought avowedly for the use of the drawer, Alexander Peters, to the intent that he should have the control of the funds, it seems to us to be clear that it would not be competent for the defendant to prevent him from appropriating the same as he should think just. But the payee of this bill is a holder for value received. He not only had claims against the drawer in his own right, but after this bill so accepted by the defendant came into his hands, he became under an obligation to discharge certain debts for the drawer, and he has actually paid the same. So that the payee comes not only with the legal presumption, but with the proof of having paid value fot the bill.
*340It, has been suggested for the defendant, that the p/aint iff has given several receipts for money received of the defendant on account of this bill, upon the account stated by the defend ant, in which the judgment of Coolidge, Deblois & Co., is charged against the funds ; and so that it may be fairly presumed that the plaintiff has assented to the correctness of that charge.
But upon an examination of the original account stated and the receipts of the plaintiff, we do not think that this sugges lion is well founded. The receipts do not refer to the account. It does not appear that the plaintiff saw the account. The receipts are on the last page of the paper, on which there is no other writing. The receipts are for.money received “in pursuance of the order of Alexander Peters, dated &c and duplicate receipts were signed by the plaintiff, one set of which were written on the back of the original order.
It has been contended for the defendant, that on the same day, but after he accepted the order, he discovered the mistake in not claiming the judgment to be allowed for the creditors of Coolidge, Deblois & Co., and notified the drawer by a letter of that date, but postmarked several days afterwards, that some arrangement should be made in that respect. Peters, the drawer, received that letter, but the case finds that it did not appear that he communicated the contents to the plaintiff. But if he had, it seems to us that it came too late. The rights of the parties had become fixed by the order and acceptance. The balance mentioned in the order refers expressly to the sum that should remain in the defendant’s hands, which should belong to Alexander Peters, after the collection of the funds of the estate of Joseph Peters. The defendant engaged that Alexander Peters should have the control of that balance, and that it should be paid to the plaintiff or to his order. We are very clearly of opinion, that the defendant cannot be permitted to claim any part of those funds as assignee of the house of Coolidge, Deblois & Co., whether the assignment should have been for the use of the creditors of that house, or for his own use.
In every view in which this case has been presented to our minds, we are all of opinion that the judgment must be for die plaintiff