#### Peter P. Lawrence, v. Wilkinson Mabry.

From Edgecomb.

A bona fide holder of a bill or a promissory note, in which the namp of the payee has not been inserted, has a right to fill up the blank left for the payee’s name with that of an endorser — or he may subject the endorser, in a count upon his endorsement, — or as the. drawer of a bill of exchange upon the maker.

This was an 'action of assumpsit, in which the Plaintiff declared, 1st, on (he endorsement by the Defendant of a note made payable to him by one David Barnes. 3d, on the endorsement by the Defendant of a note payable to bearer. 3d, on a special guaranty of the Defendant, in consideration of money advanced by the Plaintiff to David Barnes, on the credit of the Defendant. 4th, on a promissory note of the Defendant payable to the Plaintiff. 5th, on a bill of exchangedrawn by the Defendant in favor of the Plaintiff, upon David Barnes ‘, and also for money had and received by the Defendant to the use of the Plaintiff, and for money lent by the Plaintiff to the Defendant.

*474Dec. 1830.

Upon non-assumpsit pleaded, the cause was tried before his Honor Judge Martin, when a verdict was rc-turned for the Plaintiff, subject to the opimo» of the pre-giving Judge, on the following facts :

David Barnes offered a note for discount at the Tarbo-roisgh branch of the State Bank, made by himself as principal, and one Carneij as surety, for $1300. A blank had been left in the body of the note, for the purpose of inserting therein the name of the payee. This blank had never been filled up ¿ but the Defendant liad endorsed the note. The note was discounted at tfie bank, and the proceeds paid to Barnes, and was regularly protested for non-payment, of which the Defendant had notice. The Plaintiff is the Cashier of the Stale Bank at Tarboro'ugh, and the blank endorsement of the Defendant had, according to the usage of the bank, been filled up to him.

Upon these facts, bis Honor set aside the verdict, and entered a non-suit. Whereupon the Plaintiff appealed.

Badger and Mordecai for the Plaintiff,

cited Mind v. Gibson; — 5 T, R. 4,81. S. C. — l II. Blk. 569, — Vere v. Lewis, — 3 T. R. 182. — Tutlock \. Harris,-Do.174,-Bank of England v- .JVewman, — 1 Ld. Ray. 44-., — Bush v. Beeves. — 3 T. R. 435, 439, — Hodges v. Steward,• — 1 Salk 125,— Brown v. Harraden, — 4 T. E. 148, — Butter v. Crips, — 6 Mod. 29, — Tussell v. Lewis, — l Lord Bay.743, « — Chilly on Bills 10 f.

The Attorney-Gen eral, contra,

cited Chitty on Bills, 42, 43, — Gibson v. Minet. — 1 H. Blk. 608. and onward, — - Bennet v. Varmer, — 1 Camp. 130, — Cook v. Felloxvs,— 1 T. R. 143.

Hall, Judge.

It appears from modern decisions, that liberal constructions have prevailed in relation to negotiable securities, in order to obtain the ends of justice. It has been long since held, that the payee of a *475negotiable paper by endorsing his name on it and delivering it to a third person, authorizes that person to make an assignment of it to himself, in the present case, the name of the payee of the note was not inserted. But when the note was in the hands of the endorser, ■Mabry, the Defendant, where it was placed by the makers, he was authorized to insert his own name in it.

In Cruchly v. Clarence, (2 Maul & Sel. 90,) it was decided that a hill of exchange, drawn and issued in blank for the name of the payee, may be filled up by a bona fide holder witii his own name, and will bind the drawer. So an endorsement on a blank note will bind the endorser, for any sum \vhich the person, with whom it is entrusted, thinks proper to insert in it. (Russell v. Langstaffe, — 2 Doug. 514.)

So, I think, when the bill came into the hands of the Plaintiff, as a bona Jide holder of it, he might have inserted the Defendant’s name. By leaving' it blank, the makers of the note authorized any bona jide holder of it to fill it up. I think the Defendant is liable upon his endorsement as such, or is liable as the drawer of a new hill. (Clark v. Pigot, 1 Salk. 125, Nicholson v. Sedgwick, 1 Ld. Ray. 180, Slacum v. Pomery, 6 Cranch, 221.) A bill payable to a fictitious payee may be declared on, as a bill payable to bearer, against all persons knowing the name of tiie payee to be fictitious. (Gibson v. Minet, 1 H. Bl. 569, Collis v. Emett, Id. 313, Gibson v. Hunter, 2 Id. 187, S. C. Id. 288, Ballingalls v. Gloster, 2 Term 481.) I mention this case to show, that the more ancient and rigid rules are wearing away, and giving place to more liberal ones, for the sake of attaining the ends of justice. Nothing can he more true, (provided I am correct in the law of this case) than that the justice of it is with the Plaintiff. Believing the law' to be so too, I think that the non-suit should be set aside, and judgment entered for the Plaintiff.

Per Curiam. — Let the Judgment below be reversed. Judgment entered for the Plainliff,