
    
      David Aiken vs. Robert Cathcart.
    
    A party wishing to raise money drew a note, leaving a blank for the name of the payee, and the defendant indorsed it. The note was afterwards transferred by the drawer for his benefit, and the transferee filled up the blank with the name of the defendant. Held, that the defendant was liable on the note as indorser.
    
      Before Frost, J. at Fairfield, Spring Term, 1846.
    This was an action by the last indorser, who had taken up the note, against the first indorser. The note was made by J. J. Myers, dated 9th March, 1842, for $5000, and the name of the payee left in blank. It was indorsed first by the defendant, and by W. J. Woodward, and then by the plaintiff. James R. Aiken testified that Myers had applied to the plaintiff to indorse this note, which, at first, he refused to do; but after some persuasion by Myers, and being assured that the prior indorsers were abundantly good, and his name only important to give the note greater credit in bank, he consented to indorse it. This witness also said it was not an accommodation note. Myers transferred the note, with the name of the payee still in blank, to Rob-insons and Caldwell, in payment of a balance of account due to them, and also for future advances to be made by them for him. The name of the defendant was inserted in the note by Robinsons & Caldwell, after it was transferred to them, and it was by them discounted in bank; at maturity, they took it up ; afterwards it was repaid to them by the plaintiff. At this time Robinson proposed to the plaintiff to pay one-third of the note; he refused to do so, saying he was not to pay any part, and if Robinson sued he might sue all the parties to the note. »
    The case was submitted to the jury, without argument, who were instructed by his Honor, the presiding Judge, that the plaintiff was entitled to recover 5 they found a verdict accordingly.
    The defendant appealed, and now moved this court for a new trial, on the following grounds :
    1. That the note of John J. Myers, on which the action was brought, having no payee inserted in its body until after it was put into circulation, the insertion of a payee, after that time, was such an alteration, in a material part, as vitiated the note.
    2. That no payee having been inserted in the note at the time it was drawn and indorsed, it was not a note, under the law merchant, capable .of being indorsed, but was payable, upon general principles, to a fictitious payee or to bearer, and that each indorser was a guarantor, and equally liable as guarantor.
    McCall, for the motion,
    cited 1 Hill, 74 ; 2 N. & McC. 102 ; 1 McM. 76 ; Bail, on Bills, 30 ; 3 McC. 482; 1 N. & McC. 128 ; 2 McM. 320.
    McDowell, contra.
   Curia, per

Frost, J.

The questions presented by the grounds of appeal have been decided in Carson vs. Hill & Jones, 1 McM. 76. In that case, a note in blank, except that $5000 was written at the top, was signed by several parties, and delivered to one of them, to be used for his benefit, who delivered it in blank to the plaintiff, as collateral security for advances. The plaintiff, long after the delivery of the blank to him, filled it up in the terms ■of a promissory note for the payment of the sum expressed on the paper. It was held that the defendants, who had signed the note as sureties, were liable as makers. In Russel vs. Langstaffe, Doug. 515, Lord Mansfield held that the indorsement of a blank note is a letter of credit for an indefinite sum. Many cases concur to establish that when the indorser of a note commits it to the maker in blank, either in whole or in part, the note carries on the face of it an implied authority to the maker to fill up the blank. As between the indorser and third persons the maker must, under such circumstances, be deemed to be the agent of the indorser, and as acting under his authority and with his approbation. Collins vs. Emett, 1 Hy. Bl. 313 ; Smaith vs. Mingay, 1 M. & S. 87 ; Cruchley vs. Clarance, 2 M. & S. 90.

The insertion of the name of the first indorser in the blank left for the name of the payee, was not an alteration, but the completion of the note. It gave effect to the note consistently with the liabilities of the parties, expressed by their indorsements. The note might thus be perfected after a transfer. When the blank was filled in pursuance of the authority implied by the delivery of the note to the maker, it had relation back to the indorsement, and took effect as if the note were then perfect; Js»jJa^ases shew that when a signature is written to a ded to have the operation of a negoj becomes such,’ when perfected, from signed, so as to support the allegado: indorsed the note or bill. The mot!

RichaudsoN, O’Neall, Evans law, JJ. concurred. RD-  