This was an action of assumpsit, containing the usual counts, for goods, wares, and merchandize, for money had and received, .&e. During the progress of the trial, a bill of exceptions was signed by the court, which contains the charge given to the jury, assigned for error.

The res It of the charge is, that the plaintiff in the action could not recover ; but it is so connected with the facts, as to show explicitly, upon what grounds it was given : and as the hiil of exceptions does not purport to set forth all the evidence with was introduced, we must consider the charge with reference only to the facts on which it was predicated.

The bill of exceptions shows, that a bill of exchange was « introduced as evidence by the plaintiff, which was drawn in favor of the said plaintiff, indorsed in blank by him, and ac~' • cepted by the defendant; that subsequent to the acceptance, an assignment by deed of trust, for the benefit of his creditors, had been .executéd by the plaintiff, Stowe, to one Franklin ; whose interest, by virtue of said deed, had been transferred, or was understood by said Franklin, Center and Henry Hitchcock, to be transferred to the said Center: that sub*297sequent to the said transfer to Franklin by Stowe, and by him to Center, an assignment of his personal effects was executed by Stowe to H. Ellis, for whose use this action is brought. ■ It appears also, that by a subpoena duces tecum, served upon Center, the said bill of exchange was produced in court. The Judge instructed or charged, “that the deed of assignment from Stowe to Franklin, though fraudulent and void as against creditors, wras good against Stowe, and those claiming under him, and rendered his subsequent attempt to make an assignment void, and inoperative; and that from this consideration, a verdict could not be rendered against the defendant. That, this charge is erroneous, I have no doubt. The jury are told that a verdict could not be rendered for the plaintiff, from a consideration of facts, which I deem wholly irrelevant to the true merits of the case, as far as the bill of exchange constitutes a part of it. The bill is drawn in favor of the plaintiff, Stowe, who sues for the use of Ellis, and is permitted to go to the jury without any objection, either to the-blank indorsement, which could have been stricken out, as I consider the law upon that subject, or on any other ground. The existence of those several assignments of his property by Stowe, whether fraudulent or not, could not defeat this recovery — they are wholly res inter alias acta. They do not constitute a legal defence- — nor do they constitute legal premises • of the conclusion drawn from them, and given in charge to the jury. The acceptor of a bill of exchange, is as the maker of a promissory note ; and it has been frequently decided, that he cannot in this way, question the title of an assignee, who is plaintiff; much less could he defend, by showing that the cestui que use, in an action by the payee, is not entitled to the fund. How the supposed interest between Center or Franklin, and the cestui que use, may be determined, if it ever arise, is a matter not at all affecting the liability of the defendant; and an imaginary contest between them, cannot furnish a defence to this action.

Let the judgment be reversed, and the cause remanded.