
    
      David Aiken vs. Robert Cathcart.
    
    When the indorsements on a note are all in blank, any one of the indorsers may sue the prior parties, striking out all the indorsements below his own; and when no malafides is imputed to his possession, he is not required to prove that he paid the note when he took it back.
    
      Before Wardlaw, J. at Fairfield, Fall Term, 1845.
    This was an action by the third indorser against the first indorser of a note. The note was for $5000, made the 9th March, 1842, by John J. Myers, payable after two hundred and fifty days, at the office of Robinsons & Caldwell, in Charleston, to the order of the defendant, and indorsed by the defendant, W. T. Woodward, the plaintiff, and Robinsons & Caldwell. The indorsements were all in blank. It had been discounted in bank, and after due demand, and notice of non-payment given to all the parties, had been taken up by Robinsons & Caldwell. They sent it to their attorney, Mr. McCall, with instructions to discharge the plaintiff if he would pay one-third without recourse to the two first indorsers, who would pay the other two-thirds; otherwise, to sue him for the whole. The plaintiff declined making the'payment as proposed, and on the 1st. day of April 1843, (the return-day of the court for Fairfield district) a writ was issued by Robinsons & Caldwell against the plaintiff on the note, the service of which was accepted by the plaintiff. An arrangement was then made between Mr. McCall and the plaintiff, which was expressed in two receipts interchanged between them. The plaintiff drew a draft upon Martin, Starr & Walter, of Charleston, for $5,640, payable, at nine months, to Robinsons & Caldwell, which he delivered to Mr. McCall, for w;hich Mr. McCall gave him a receipt, in which it is said that the “ draft is to be sent to Robinsons <fc Caldwell, and is to be payment of a note” (describing this note) “ if the said Robinsons & Caldwell shall assent to this arrangement, and signify the acceptance of the said draft in payment of said note; otherwise, the draft is to be returned, and this arrangement to stop, cease and determine, and suit to go on against David Aiken in favor ■of Robinsons & Caldwell, who hold the note as indorsees.” Mr. McCall delivered the note to the plaintiff, for which the plaintiff gave to him a receipt, in which it wits said that the note “ is to be returned if Robinsons & Caldwell should not accept the draft drawn in payment of said note, which belongs to them.” Immediately afterwards, on the 1st. day of April, this suit was commenced. Robinsons & Caldwell, sometime afterwards, accepted the draft, and it was paid at maturity.
    The presiding Judge held that, at the commencement of this suit, the plaintiff had not such a title to the note as authorized him to sue thereupon in his own name; and granted a motion for a non-suit, which the plaintiff now moved to set aside.
    McDowell, for the motion.
    
      Wethefs and McCall, contra.
   Curia, per Wardlaw, J.

This case was hastily decided, after a short argument, at the close of a heavy circuit. I am now satisfied that the motion for nonsuit should not have been granted.

In the case of Mendez vs. Carreroon, 1 Lord Raym. 742, Lord Holt held, in an action brought against the acceptor by an indorsee, who had taken up a bill of exchange upon which he had been sued by a subsequent in-dorsee, that the custom of merchants required the production of a receipt, but that it would be sufficient if the plaintiff proved that he had paid the bill; and for want of that proof the plaintiff was nonsuit. It is said in a note to 2 Stark. Ev. 250, that the record having been consulted, it was found that in that case the plaintiff did not declare on the bill as indorsee, but specially alleged his payment of the money to the subsequent indorsee, upon default of the acceptor.

There is now, however, no doubt that in such case the indorsee who has taken back the bill, may sue on the bill against the prior parties 7 T. R. 571; ( Cowley vs. Dunlop) and even negotiate the bill again ; 3 M. & S. 97, ( Callow vs. Lawrence). Where such indorsee declares on the bill, although proof of payment may, perhaps, be required if the bill had been negotiated specially, no such proof is essential if the indorsements have all been in blank, as in this case. As said by Ch. J. Eyre, in Walwyn vs. St. Quintín, 1 B. & P. 658, the indorsers may arrange the matter among themselves, and any one indorsee may sue, striking out all the names upon the bill below his own.

It is said here, however, that there was no arrangement between Robinsons & Caldwell and the plaintiff that he should sue. But there was a delivery of the note to him upon an agreement, which, liberally construed, means that it had been exchanged for a draft, which, when paid, should be payment in full. This action is brought by one who, at the commencement of this suit, had possession of the note, who ever since could have delivered to the defendant the note and a perfect acquittance, and whose right to sue appears upon the note. The defendant has no right to inquire into the private arrangement subsisting between other parties, when no mala fides is imputed to the possession of the holder, and the legal right of action is in the holder. Motion granted — nonsuit set aside.

Richardson, O’Neall, Evans, Butlek, and Frost, JJ. concurred.  