
    James W. Grissom v. L. B. & T. D. Fite.
    1. Practice. Leave to file a defective plea refused. It is not error in the Circuit Court to refuse leave, at the tz-ial term, to file a defective plea.
    
      ■2. Pleading. Mon est factum. A plea of non est factum filed by the accommodation endorser of a note, which was left to he filled up by the maker, should aver that the endorsee knew at the time he received the note, that the maker was not authorized to insert the amount with which the note was filled up. The law presumes theholder of the note to have purchased for value and in due course of trade, and he could enforce the collection of it, unless he had notice of the want of authority to fill it up with the amount inserted.
    PROM SMITH.
    At tbe trial term tbe plaintiff in error asked leave to file this plea:
    “And tbe defendant, James W. Grissom, comes and defends tbe wrong and injury, when, &c., and for plea says, that at tbe time of endorsing, as security, tbe said promissory notes declared on, they were both blank as to tbe amount, and that sometime subsequent to the execution thereof by this defendant, and in bis absence, and without bis assent or authority, said blanks were filled up in one of said notes, by inserting tbe words, ‘four hundred and fifty-three dollars and seventy-one cents,’ and tbe other note was filled up, by inserting the words, ‘four hundred and fifty-eight dollars and twenty-four cents,’ without any acknowledgment or redelivery of said supposed promissory notes by this defendant.
    
      The defendant further ayers, that at the time of endorsing said supposed promissory notes, as aforesaid, his eo-defendant, Jas. A. Crutcher,, was authorized to fill up the respective blanks in them as to the amount, so that both of said promissory notes together, should not exceed the sum of four or five hundred dollars ‘T and in no event was this defendant to be bound as endorser thereof, for a greater amount than four hundred, or five hundred dollars, altogether, on both -of said supposed promissory notes. Both of which were afterwards filled up as to amounts, as aforesaid, without the consent or procurement of this defendant, and without his acknowledgment or re-delivery thereof. And- this he is ready to verify, &c.
    The Court, GakdeNHIRE, J., presiding, refused the application,. Judgment was rendered in favor of the plaintiff, at the November Term, 1858, and the defendant, Grissom, appealed.
    W. H. DeWitt, for the plaintiff in error,,
    cited and commented upon the following authorities
    12 Con. Eng. R., 285; IT John. R., 801; 8 Pick. R., 5; 2 Green, on Ev., § 172, and authorities there cited; 2 Stark, on Ev., 220, and authorities there referred to; Hall v. Hall, 8 Conn. R., 886; Banlc of St. Al-bans v. Qilliland, 28' Wen., 311; Wheeler v. Quild, 20 Pick., 545; 2 Kent’s Com., 80 and 81; 9 Wen., 170; 10 Do., 85; 5 Pick., 223; 20 John. R.; 13 East’s R., 135, note; Qrant v. Vaughan, 3 Burr. R., 15 and 16; Story on Agency, §§ 14, 15, 29 and 34.
    
      S. M. Fite, for the defendants in error,
    said:
    The plaintiff in error insists that there was error in the refusal of the Court to permit him to file a new plea at the trial term.
    We say there was no error for two reasons:
    1. There is no good reason given for not filing it at the first term.
    2. The plea was bad, because, if true, it was no defence to the action.
    The point in it is, simply, that the notes, when endorsed by him, were in blank as to amount, being executed and delivered by him to the maker, to be filled up with f400 or $500; and that Crutcher, the maker, for whose accommodation he endorsed, filled them with double that amount, and that this was done in the presence of defendants in error. But it does not aver that the defendants had any knowledge that the notes were being filled up with too large an amount. That this delivery of the notes in blank to be filled up by Crutcher, the maker, was a carte blanche to fill them with any amount, see Nichol, Hill §■ Co. v. Bate, 10 Yerg. 429; Chitty on Bills, 33, and note 1; Chitty on Bills, 186; Putnam et al. v. Sullivan et al., 4 Mass., 45.
   Weight, J.,

delivered the opinion of the Court.

The pleadings in this cause were duly made up at the appearance term. At the trial term the defendant, Grissom, moved the Court for leave to file a plea of non est factum. This was refused by the Circuit Judge.

In this there is no error. The plea was bad, because if true it was no defence to the action.

The plaintiffs were the holders of the two promissory notes in question, by endorsement from Grissom, and in legal presumption had purchased them for value, and in due course of trade. 2 Greenl. Ev. § 172.

It may very well be true that the note3 were endorsed by him in blank, as to the amount, and delivered by him to Crutcher the maker, for whose accommodation they were made, to be filled up and used for a sum not exceeding $500; and that he afterwards, in the absence and without the authority of Grissom, in the presence of the plaintiffs, caused the blanks to be filled in double that sum; yet if the plaintiffs were ignorant of his want of authority so to fill up and use said notes, and were bona fide holders, they would still be entitled to recover. The plea does not negative this, and the authorities are abundant to show it is defective. Stuart v. Davidson et al., Peck, 202, 203; Bank of the Commonwealth v. Curry, 2 Dana’s Rep., 142; Kimbro v. Lytle, 10 Yer. 417.

It may be very true, as argued by the counsel of Grissom, that under a proper plea, if he were to show by proof the facts stated in this plea, the plaintiffs would then be required to show under what circumstances and for what value they became the holders. 2 Greenl. Ev. § 172.

Yet this is a question of evidence, and not of- pleading ; and it is still manifest the plea was defective.

Affirm the judgment.  