
    The Union Bank vs. Cake and Boyers.
    1. On the trial of an action of assumpsit against the endorser of a bill of exchange: Held, that the plaintiff had the right to strike outthename of an endorsee and insert his own name upon proof made that the bill of exchange belonged to plaintiff, and that it was made payable to said endorsee, for the purpose of facilitating the safe transmission of the bill, and the collection thereof.
    
      2. A writ of error will not lie from a voluntary non-suit.
    The President, Directors & Co. of the Union Bank of Tennessee, instituted this action of assumpsit in the circuit court of Shelby county, on the 16th day of September, 1839, against Carr and Boyers, the drawer and endorser of a bill of exchange. They pleaded non-assumpsit, and on the trial introduced a bill of exchange in the following words:
    “Memphis, June 5th, 1838.
    “Seven months after date of this my first of exchange, and second ofthe same tenor and date unpaid, pay to the order of Carr & Wood, two thousand five hundred dollars for value received, and charge the same to account of Oarr & Wood.
    To Messrs. T. F. Wood & Sinnatt,
    New Orleans.”
    This bill was endorsed,
    “Pay to H. L. Douglass, or order.
    Carr & Wood.
    Pay to Boyers & Saffarans.
    H. L. Dotigeass.
    Pay to W. S. Picket, or order.
    Boyers & Saffarans.”
    The plaintiffs moved the court to strike out the words “W. S. Pickett, or order,” with a view to insert the name of plaintiffs, upon proof that the plaintiffs were the owners of the bill.
    But the court, Dunlap, judge, presiding, refused to permit the same to be done. The plaintiffs, thereupon, took a non-suit, and at a subsequent day of the term, moved the court to set aside the non-suit upon proof made by affidavit and deposition, that the President, Directors & Co., of the Union Bank of the State of Tennessee, were the owners of the bill of exchange, and that they had procured the endorsement of the said bill of exchange to said W. S. Pickett, for the purpose of more safely transmitting and collecting the said bill of exchange. But the court refused to set aside the non-suit.
    
      The plaintiffs appealed in error to this court.
    
      Wheatly, for plaintiffs in error.
    
      heath, for defendants in error.
   Green, J.

delivered the opinion of the court.

This is an action of assumpsit brought by the plaintiffs in error against defendants as endorsers of a bill of exchange. The bill endorsed, as in the record, was purchased or discounted by the plaintiffs shortly after its date. Upon the trial in the circuit court of Shelby county, the plaintiffs proposed to strike out the endorse*ment to W. S. Pickett, assistant Cashier of the bank, and make it payable to themselves, upon proving that the endorsement to him. was made only for the purpose of facilitating and rendering safe, the transmission of the bill to New Orleans for collection, where it was payable, and that in fact the bill belonged to them, though it was specially endorsed to'Pickett. The court below would not permit this to be done, for the reason, that the endorsement in full to Pickett vested the legal interest and property in the bill in him; and that, therefore, no suit could be maintained upon it except in-his name or by his assignee. Plaintiffs thereupon took a non-suit, and afterwards moved to set it aside, which the circuit court refused to do, but gave judgment against the plaintiffs for costs, from which this appeal is prosecuted.

We think the court erred in not allowing the endorsement to be. stricken out, and changed as proposed, and consequently, in not setting aside the non-suit. The law is clearly in favor of the right of a plaintiff, or any bona fide holder of a negotiable instrument, to-strike out and change an endoi’sement upon it, made under the circumstances and for the purposes shown in this case. See 18th John. Rep. 230: Chitty on Bills, 257, and note: 4 Peters Con. Rep. 223: 7 Yerg. 477. But we have, heretofore, determined that a writ of error would not lie from the judgment of a circuit court, refusing to set aside a voluntary non-suit. 6 Yerger.

This court, therefore, refusing to take jurisdiction of such case, let this cause be stricken from the docket, and judgment for costs entered against the plaintiffs in error and their security in the appeal.  