We see no objection to the right of the plaintiff to maintain the action in his name alone. But the important question which affects the merits of this case is, was the plaintiff on the trial bound to produce and deliver up, to be cancelled, the draft for three hundred and thirty-eight dollars, which he had given to Lacy, or rather which Hodgen gave to Lacy in substitution for the one which Latham had given him, or else have that sum deducted from the amount otherwise due him for the corn ? The draft was drawn against the amount due the plaintiff for the corn, with the sanction and direction of the plaintiff beyond all question, and if it had been paid, the proceeds would have been applied for the benefit of Latham, and in that event no question would have been made on this trial that the defendant should have had credit for that amount. Is the case any different now? That draft was given to Lacy for the benefit of Blair, Latham’s creditor. Upon the delivery of it to Lacy, the title to it vested in Blair, and that title could only be divested by his own voluntary act of returning it. The non-payment and protest did not divest his title. He had a right to retain it and sue the parties to it for the amount due upon it, and he has retained it no doubt for that purpose,—at least such is the legal presumption. Suppose the drawers pay voluntarily, or on compulsion, that draft; that would make them Hodgen’s creditors to that amount, and that sum would be applied to the benefit of Latham in payment of his debt to Blair, and thus, if this judgment is allowed to stand, he will get the benefit of that amount twice. As between Latham and the other parties concerned in the transaction, and Blair, the latter is a Iona fide holder of the draft. We have no doubt the draft should have been produced and cancelled on the trial, or the amount deducted from the verdict.
The judgment is reversed, and the cause remanded.
Judgment reversed.