
    William M. Myers v. William H. James.
    If the payee of a note, negotiable by indorsement, transfer it by delivery, without indorsement, the party to whom the transfer is made may bring an action on it in the name of the payee, and the latter will be liable to the defendant for the costs, unless it appear, that the action failed by reason of matter arising subsequent to the transfer, vide Hortóta v. Blair, ante, preceding case.
    Before Mr. Justice Evans, at Sumter, Fall Term, 1831.
    This was a rule on the defendant to shew cause, why the execution, which had been sued otit against the plaintiff for the costs of this action, should not be set aside. The action was upon a note of the defendant, payable to the plaintiff, or order, and not indorsed. The rule was supported by an affidavit of the plaintiff, “that the action was brought in his name without his knowledge, or consent; that he was not the owner of the note when it was sued, and had no interest in the suit; and that he did not put the note in the attorney’s hands for suit, nor instruct him to bring the action.”
    The presiding Judge was of opinion, that the case was within the principle decided in Bennet v. M’Fall, 2 Mill, 198. The only difference was, that there the cause of action was notnegótiable, whilst here the note was negotiable by indorsement. But as the plaintiff did not indorse the note, the holder could not sue upon it in his own name ; and a transfer by delivery, only, must be regarded, according to the case of Bennet». M’Fall, as constituting the party, to whom the transfer was made, the agent of the plaintiff, to collect the note, and, if need be, to sue for it in his name, as payee. The plaintiff must be liable, therefore, for the costs of the action.
    Rule discharged.
    The plaintiff now moved to reverse his Honor’s decision, as contrary to law.
    W. F. Desaussure, for the motion.
   Johnson, J.

delivered the opinion of the Court.

There is nothing in the affidavit of the defendant, which controverts the fact, that he transferred the note, given to him by the plaintiff, by delivery : but the ground of the application, as I understand it, is, that having transferred the note without indorsement, he was not liable, and had no interest, nor had he expressly authorized the bringing of the action. We are not informed, whether the action failed on account of matter which existed before, or after,the defendant parted with the note; and 1 take it for granted, that if it failed by reason of matter which arose subsequently, so important a fact would not have been overlooked in the statement of the case. Taken in this view, it is clearly within the principle of the case of Bennet v. M’Fall, referred to by the presiding Judge.

Motion refused. 
      
      
         It was stated at the bar, that the action failed on the ground, that the .note was given.for a gaming consideration E.
     