#### Stevens and others *v.*Strang and others.

A note payable to a fictitious person, is recoverable as payable to bearer, under the statute, on proof that it was negotiated by the makers.

Evidence state'd, which was held sufficient to entitle the holder to recover on such a note.

Sept. 11th;

Oct. 7th, 1848.

This was an action of assumpsit commenced by declaration, which contained the money counts and a count upon an account stated, and on which was indorsed a copy of a promissory note with a notice that the same was the only cause of action on which *the*plaintiffs *relied.*

The plea was the general issue.

The cause was tried before Chief Justice Oaklet, without a jury, on the tenth day of May, 1848. The plaintiffs proved the making of the note by the defendants, and it was read as follows:

*“*$466 -40.

“ Six months after date, we promise to pay to the order of ' Messrs. Ebenezer Stevens & Sons, four'hundred sixty-six and 40-100 dollars value received.

“ Benj. H. Strang & Co.”

The plaintiffs counsel then called Thomas M. Adriance, who testified:—I am in the plaintiffs employ. The title of the firm is “ Ebenezer Stevens’ Sons.” I have been with the old and new firm, near thirty years. Have been in plaintiffs' employ ever since the formation of the present firm. There was *139formerly a firm of “ Ebenezer Stevens & Sons,” but it does not exist now. It ceased to exist some twelve years ago. Ebenezer Stevens is dead. He died in September, 1823. He was the father of the plaintiffs. There was no such firm as Ebenezer Stevens & Sons, at the time the note in suit was given, nor is there at the present time.

The plaintiffs counsel offered to prove by the witness the consideration of the note, and the circumstances attending the making and negotiating the note, for the purpose of showing that the title of the note was in the plaintiffs, and they had a right to sue upon it. The defendants counsel objected to the evidence, but the objection was overruled, and the defendants excepted.

The witness then testified :—The note was given for goods sold and delivered by the plaintiffs, under the firm of Ebenezer • Stevens’ Sons, to Benjamin H. Strang & Co. This is the order :—(The defendants counsel objected to the reading of the . order, but the objection was overruled, and the defendants excepted.) The order was then read in evidence, and is as follows:—

, *L*

“ Please deliver Messrs. Benjamin H. Strang & Co.,

1. One half pipe Otard brandy, 1842.

2. Two do. A. Seignette.

Sold per your order.

G. H. Stanton.

New York, May 28, 1847,

(Endorsed.) Benj. H, Strang & Co.”

On being cross-examined, the witness testified:—The goods were sold by me to Stanton, the broker of the defendants. All I know, except what appears in the order, was what Stanton told me. 1 delivered the goods myself to a cartman, who presented the order with the indorsement on the back.

The plaintiffs’ counsel then offered to read the note in evidence, to which the defendants objected. The court overruled the objection, and the defendants excepted. The note was then read in evidence.

The plaintiffs here rested ; and the defendants moved for a *140nonsuit, on the ground that the plaintiffs had not shown any title to the note, or any right to sue upon it in their names. The court overruled the motion, and defendants excepted.

The Chief Justice thereupon rendered judgment for the plaintiffs" for the.amount of the note, and interest.

The defendants now move that a nonsuit be entered.

*M. G. Harrington,*for the defendants.

*G. Gibbs,*for the plaintiffs.

By the Court. Sandford, J.

By the statute, promissory notes made payable to the order of the maker thereof, or to the order of a fictitious person, shall, if negotiated by the maker, have the same effect, and be of the same validity, as against the maker and all persons having knowledge of the facts, as if payable to bearer. (1 R. S. 768, § 5.)

In this case, the proof was abundant to show, that Ebenezer Stevens & Sons were fictitious persons, within the meaning of the act; and also that the insertion of that name as the payees was an inadvertence, which might well occur under the circumstances.

The evidence which the defendants object to as proving a cause of action distinct from the note, (the declaration having a notice attached that the note was the only cause of action,) was given to prove the plaintiff’s title to the note, and that the makers negotiated it. It was pertinent and proper in that view, and was sufficient to bring the case within the statute.

Motion for new trial denied.