
    Lovell against Evertson.
    ALBANY,
    Jan. 1814.
    Where a promissory note payable to orsed’in Mankj the holder has it up with any ™eandplthe' person whose name is inscried, wilt he deemed tlie legal owner; the ^endorseiment in blank as a transfer of1 othei^perí would hícro! sidered .as a trustee suipg for the beneson”fhaving*' r“tlesal iute'
    __ itrror _ lies ment ¡ynln'. ™a-f picas, though uo costs are awarded on rir th/pkmti.r is aggrievdefeiiieciofhis i-ivjti of action in that suit, vosLofproseciting it.
    IN EE.E.OK, from the court of common picas of Oranq-e , _ ,, , ,, _ . , county. Lovell Drought an action 01 assumpsit m the court í,elow aSainst Evertson, as the endorser of a promissory note, dated 28th November, 1810, made by Robert Barnes, for SI do Ilars and 21 cents, payable to the defendant or order, ninety days after date.
    The defendant pleaded non assumpsit. At the trial the note *■ - was produced with the name of the defendant endorsed, and , ni1 - , , , was then filled up "with tnese words; “ pay the contents to 'Lhomas Lovell.” The note in question, with several others, had been endorsed in blank by the defendant, and delivered to the attorney of Thomas Lovell fy Co. merchants in Nen-York, as security for a debt due to them by the defendant, to be collected for tiie benefit of the said T. Lovell Sr Co. and applied towards paying the said debt. It was agreed, at the time of the transfer oí the notes, that the defendant should not be called upon for Payment, until all legal means had been used to recover the amount of such notes from the makers. The note in question not being paid, a suit was brought against the maker and a judgment recovered against him, on which a fi.fa. was issued, and afterwards a ca. sa. on which being .taken in custody, the maker afterwards obtained Ms discharge under the insolvent act, so that * nothing had been collected from him; and a suit was afterwards brought in the name of the plaintiff against the defendant,
    It was contended by the plaintiff’s counsel, at the trial, that the interest in the note was in Thomas Lovell if Co. at and from the . „ commencement of the suit.
    The defendant’s counsel moved for a nonsuit, on the ground that as the note was'endorsed and delivered for the benefit of Thomas Lovell Sc Co. and ivas so endorsed after it was due, it was not competent to the plaintiff alone to sustain the action; and that no action could be maintained for the benefit of T. Lovell Sr Co. on these endorsements, unless it 'was brought in the names of T. Lovell and his partner or partners.
    The court below, therefore, nonsuited the plaintiff. A bill of exceptions was tendered, and a writ of error brought thereon to this court.
    
      
      D. Buggies, for the plaintiff in error,
    was stopped by the court.
    Story, contra, contended,
    1. That the action ought to have been in the name of Lovell and his partners; 2. That by giving time of payment to the principal, the defendant, as endorser, was discharged; 3. That the plaintiff below having voluntarily submitted to a nonsuit, and there being no judgment for costs, no error would lie on the judgment. The defendant did not ask for a nonsuit, but the plaintiff suffered himself to be nonsuited, and he cannot now get rid of the judgment.
    
    
      
       1 H. Black. 432. 4 Term Rep. 436. 2 Johns. Rep. 3
    
   Per Curiam.

The court below erred in nonsuiting the plaintiff, for the note being endorsed in blank, the owner had a right to fill it up with what name he pleased, and the person whose name was so inserted, would be deemed, on record, as the legal owner, and if not so in fact, he could sue as trustee for the persons having the real interest. But the defendant could have no concern with that question. He was responsible to the person whose name was so inserted in the blank endorsement. This is a plain and settled rule, and a decision to this effect was made in the court of errors in 1800, in the case of Cooper v. Kerr. It is also settled, that error will lie on a judgment of nonsuit; (Willson v. Foree, 6 Johns. Rep. 110.) and though there be no costs awarded upon the record in this case against the plaintiff) who was nonsuited, yet he was aggrieved by being defeated of his right of action in that suit, and of his costs for prosecuting the same. If illegally nonsuited, the judgment of ponsuit ought to be reversed, and the plaintiff reinstated in the cause in court.

Judgment reversed.  