
    Luke P. Seay, et al., vs. Bank of Tennessee.
    Promissory Notes. There must he a payee. Tlie bona fide holder of a promissory note which has no payee named therein, can at any time, eyen at the trial, insert his own name as payee. But if this be neglected, and the parties go to trial without the correction, it is fatal, upon objection being made by special plea or demurrer.
    FROM GIBSON.
    At the March Term, 1§55, of the Circuit Court of Gibson county, before Judge Fitzgerald, there was verdict and judgment in favor of the Bank of Tennessee, at Trenton, against Seay, as maker, and Boon and others, as endorsers of a promissory note in these words: “Trenton, May 13th, 1854. Four months after date, I promise to pay to the order of - twenty-two hundred and fifty dollars, at the Branch of the Bank of Tennessee, at Trenton. Yalue received. Signed, L. P. Seay,” and endorsed D. M. Boon, M. M. Seay and others, waiving protest. Upon the trial there was verdict and judgment against the maker by consent, but the endorsers demurred to the declaration, which was overruled by the Court, and upon the plea of nil debit there was verdict . and judgment also against them; to reverse which they prosecuted a writ of error to this Court.
    
      Williams & Cahthel, for the plaintiff in error.
    The Court erred in overruling the demurrer. The instrument declared on is not a promissory note, having no payee. — Story on Prom. Notes, § 33; Chitty on Bills, 160.
    The bona fide holder of a promissory note payable to -■, has the right to insert his own name as payee. — 2 Kent, 77; Chitty on Bills, 160-167; 5 Taunt., 272; 2 Mass. 90. But if the holder has the right to insert the name of the first endorser as payee, in this case he has not done so, and the paper is incomplete.
    The endorsements, except the last, are all blank, and the plaintiff’s title to the paper sued on does not appear, from anything in the record. A case in 4 Iredell, 266, is directly in point. The plaintiff refused to fill up the endorsements, and the Court say it is fatal. — 1 Swan R., 425; 2 Greenleaf’s Evidence, § 152.
    M. & H. Brown, for the defendant in error.
    The declaration avers that the note in question, on the day it bears date, was delivered to said D. M. Boon, to whose order it was payable, and by him and the other defendants endorsed over to the Bank in ordinary course of trade. The defendants demurred because the payee’s name was in blank on the face of the note. The demurrer was overruled, and after pleas filed, a verdict rendered for the amount of the note and interest. The error assigned here is the overruling of the demurrer. '
    
      To this objection it is answered, that the name of the payee remaining in blank on the face of the note is no ground of error. A note signed with a blank for the payee’s name, may be filled up with any bona fide holder. This is effectually done by the holder putting his name on it as endorser, and negotiating it. After such endorsement, the putting the name in the face of the note is wholly unnecessary in commercial usage, and is mere matter of form without substance, as much so as filling up a blank endorsement, which may be done before or after declaration filed, or omitted entirely. — See Story on Prom. Notes, § 37. The effect is to make it payable to the person who should first endorse it.— United States vs. White, 2 Hill, 61. On both principle and authority, we think there is no error in the record. Tide act of 1852, ch. 152, § 5.
   Haeris, J.,

delivered the opinion of the Court.

The defendant in error brought an action of debt against the plaintiff in error, in the Circuit Court of Gibson county, on the following instrument: “ Trenton, May 13, 1854. Four months after date, I promise to pay to the order of -, twenty-two hundred and fifty dollars - cents, at the Branch of the Bank of Tennessee, at Trenton. Value received. L. P. Seay:”

Upon the back of which are endorsed the following names: “ D. M. Boon, M. M. Seay, G. M. Sharp, J. A. W. Hess and James Ham.” The necessity of protest is waived, by all the endorsers. The declaration avers that by said note, L. P. Seay, (the maker,) “promised four months after date, to pay - twenty-two hundred and fifty dollars,” &c.; the defendants craved oyer of the note and endorsements, which were set out, and they demurred. The demurrer was disallowed by the Court, and upon the plea of nil debit there was verdict and judgment for the plaintiff, and the defendants have prosecuted a writ of error to this Court. The only error assigned and relied on here, is, that the paper declared on, is not a promissory note, and that the Court erred in overruling the demurrer.

It is well settled, that a note issued in blank for the payee’s name, may be filled up at any time, even at the trial, “ by any bona fide holder with his own name as payee, and then it will be treated, as a good promissory note to him from its date.”—Story on Prom. Notes, § 37; Chitty on Bills, 182-3, 160-173; 5 Taunton, 272. The correctness of this principle is admitted by the counsel for the plaintiff in error, but they insist that as the plaintiff below omitted to exercise the right by inserting the' name of a payee in the note, but declared upon it and described it as payable to blank, she has failed to show a right of action in herself. That it is essential to the validity of a promissory note that there should be a payee named in the note. Mr. Story, in his work on Promissory Notes, § 33, lays down the rule, “that it is essential to the validity of a promissory note, that it should contain no contingency or uncertainty as to the person by whom it is payable, or to whom- it is payable.” The name of the particular person to whom it is payable should be given,” &c.

In the case of Hubbard, Gardner & Co. vs. Williamson & Roan, reported in 4 Ired., 266, where the plaintiff brought a joint action against Williamson as first endorser and Roan as second endorser, it appeared upon the trial that the endorsement from Williamson to Roan, and the endorsement from Roan to the plaintiff were in blank. Upon objection by the defendants the Court held that the plaintiffs could not recover in this action without filling up the endorsements, so as to show on the bill a title to it in the plaintiffs. The plaintiffs insisted that they were entitled to recover without filling up the endorsements, declined to do so, and in submission to the • opinion of the Court, suffered a non-suit, and appealed to the Supreme Court, where the judgment was affirmed.

This authority was referred to by this Court in the case of Gardner vs. Bank of Tennessee, 1 Swan, 425; and after showing the distinction between this authority and the case then before the Court, Judge Totten says, “ this (the case in Iredell,) is not inconsistent with our judgment in the present case.”

From these authorities, as well as upon general principles, we think it clear that the plaintiff in the declaration in this case has failed to show a cause of action, for want of a payee in the note, and that the demurrer of the defendant in the Court below should have been sustained. The ground relied upon here by the defendant in error, that as the Bank had the right to fill up the blanks,' it should be regarded as though they had been filled up, we think cannot be .sustained upon authority. This point was involved in the case of Hubbard & Gardner vs. Williamson & Roan, above referred to, and decided the other way.

In the case decided by the Supreme Court of New York, of the United States vs. White, 2 Hill, 61, the note sued on, upon its face, was máde payable “ to the order of the endorser's name,” — the note was endorsed ¿by Samuel Adams, and it was held to be payable to Adams, the same as if he had been designated by name. We do not think this authority conflicts with our opinion in this case.

The act of 1852, § 4, to which we have been referred, in our judgment, does not apply to this case. 'The objections here are not formal, but substantiail. We do not intend to be understood by this decision as holding that where the endorsements are in blank and there is no demurrer to the declaration, nor the objection specifically made on the trial in the Court below, that such an objection could be taken here; or, that it is indispensable to fill up the blank endorsements ; upon that question we give no opinion. But we hold that a note, where the name of the payee is in blank, and so sued upon, is not a valid promissory note; and that upon objection taken either by demurrer, or specially upon the trial, such objection would be fatal unless the party filled up the blank so as to show a cause of action in himself.

The judgment of the Circuit Court will be reversed •and the demurrer sustained; but the cause will be re-ananded to the Circuit Court .for further .proceedings.  