
    22635.
    Dooner v. Heakes.
    Decided May 13, 1933.
   Jenkins, R. J.

Where one gives a negotiable promissory note to another, and the payee, by blank indorsement, discounts it to a third person, and on default as to payment the third person demands that the payee give his own personal note in substitution for the one discounted, and, in the absence of any demand for the old note, holds it merely as custodian, subject to be delivered to the payee at any time, and where the maker of the original note sees proper to execute to the original payee a renewal note without a return of the original note, an action on the renewal note is maintainable by the original payee against the maker, on its being-made to appear that the person buying the original note retained no title or interest therein. The rule would be otherwise if an action on the original note were maintainable by the purchaser, and if it had not been made to appear that the purchaser retained no title or interest therein or claim thereto, but merely held it for delivery to such payee.

Judgment affirmed.

Stephens and Sutton, JJ., concur.

Gazan, Walsh Bernstein, for plaintiff in error.

Fdwin J. Fender, contra.  