
    George L. Emerson versus Joseph Cutts.
    A negotiable promissory note was indorsed by the promissee to one who was bound as his surety, by way of indemnification, and who, having demanded payment of the promissor without effect, returned it to his indorser, having also placed his own name upon it as indorser, and received other securities in ex change. The promissee afterwards passed it, thus indorsed, to another person who brought his action against the promissor, as indorsee of the second indorser ; and it was holden that the action well lay.
    [*78] *The plaintiff declared in assumpsit, as indorsee of a promissory note, dated February 1st, 1809, in which the defendant promised one Jeremiah Clark to pay him, or his order, $2500, in four months, with interest, and on an indorsement by Clark to one Daniel Carlisle, who indorsed it to the plaintiff.
    At the trial of the action, which was had on the general issue, at the sittings here after March term, 1813, before the late Chief Justice 
      Parsons, the note and indorsements being proved, the same were read to the jury. On the note were the following payments indorsed, namely, 1810, Jan. 3d, $55; 1810, Jan. 11th, $118.80; 1810, Jan. 16th, $200.
    The defence set up by the defendant was, that, after the note was negotiated to Carlisle, and the defendant had refused payment, Car-lisle returned the note to Clark, the promissee, who took it up, paying Carlisle the amount due.
    In support of this defence, it was admitted, or proved, that Clark had been collector of the customs for the port of York, and that, on his appointment, .the said Carlisle and one John Swett were his sureties in a bond to the United States, conditioned for the faithful performance by the said Clark of the duties of that office ; that, on the condition of the said bond being broken, Carlisle, in the spring of the year 1809, called on Clark to indemnify him and Swett, as they had then become liable on the bond ; that Clark delivered him the note in suit for that purpose; that Carlisle then called on the defendant for payment, who paid a sum of money in part, and offered to pay the residue in rum and corn, which Carlisle refused to receive, saying, that he wanted the money to pay the bond above mentioned ; that, in eight or ten months after Carlisle had received the note from Clark, as aforesaid, he returned it to him and received other notes from him in exchange, to indemnify himself and Swett from the said bond ; most of which had been * since collected [*79] by Carlisle. It did not appear when Carlisle’s name was indorsed on the note ; but it was in blank, and filled up by the plain tiff at the trial.
    On this evidence the defendant insisted that the note, having been negotiated, returned, and paid by the payee, was functus officio, and could not be afterwards lawfully transferred to the plaintiff.
    The judge directed a verdict for the plaintiff, in order to save the question for the whole Court.
    
      Prescott, for the plaintiff.
    
      Hubbard, for the defendant.
   Parker, C. J.,

delivered the opinion of the Court.

We are of opinion, that the transaction between Clark and Carlisle, with respect to the note declared upon, was not such a payment of it as destroyed its negotiable quality. It is different from the cases cited in the argument., In those there was an actual payment of the money due, after an absolute assignment of the notes ; in this the note was delivered to Carlisle originally as security ; and, if it had happened that he had not been damnified by his suretiship for Clark, any money he might have received upon the note would have been to the use of Clark. When Carlisle returned the note to Clark, who delivered him other securities in lieu of it, this was not a payment by Clark, but merely an exchange of securities. Carlisle’s name must be presumed to have been at that time placed upon it in blank ; it probably having been thought by the parties, that the note having been transferred by Clark’s indorsement, it was necessary to re-transfer it by Carlisle’s.

Did Carlisle then indorse the note to the present plaintiff, as is alleged in the declaration ? We consider it immaterial whether he did so or not. The plaintiff has come fairly by the note, having paid a valuable consideration for it ; and we see no objection to his deriving his title through Carlisle, who has authorized it by his blank indorsement. The defendant suffers nothing by the transaction. Should Carlisle be sued as indorser, the circumstances [*80] under which his * indorsement took place may be more important. But, as the present plaintiff, being the proprietor of the note, might have stricken out Carlisle’s name, and declared upon a direct assignment of it to him by Clark ; we do not think it necessary to turn him back now, and oblige him to commence his action anew, or even to put him to the delay and expense of ah amendment of his declaration. For, to all legal purposes between the present plaintiff and defendant, the note was indorsed by Carlisle to the plaintiff.

Judgment on the verdict. 
      
      
        Blake vs. Sewall, 3 Mass. Rep. 556. — Boylston vs. Green, 8 Mass. Rep. 465. — 1 H. Black. 89. — 1 Vern. 474.
     
      
       The American cases, Blake vs. Sewall, and Boylston vs. Green, referred to, have been since overruled. Guild vs. Eager & al., 17 Mass. Rep. 615, and see Callow vs Lawrence, 3 M. S. 95. Hubbard vs Jackson, 4 Bing. 390. Thomson on. Bills, pp 293-6.
     