¶1The counsel-in this case have exhibited different statements of the evidence and the verdict; but our remarks, v ill be predicated on the cause as above detailed from our own minutes.
¶2From these it appears, that though the whole ini crest of this note ever has been in the plaintiff, yet it was made payable to Moses Foster, or order. Hence he must claim through some person of that name, who was intended as the payee, if any particular person was so intended. But the jury having found, that no person in particular of that name was intended as, payee, no person was authorized to endorse it; because every negotiable note must be negotiated by the person (or his representative) to whom the note was made payable, and not by a person of the same name. 1 Hen. Bl. 607.—4 D. & E. 28, Mead vs. Young.—Chitt. B. 92.
¶3When a note, however, is made payable to the name of some person, not having any interest, and not intended to become a party in the transaction, whether a person of such a name is or is not known to exist, the payee may be deemed fictitious. The name, is assumed merely to give form to the instrument. In such case, it has been adjudged, that a recovery can be had on the money counts, by the actual creditor., when money passed between the parties in the action. 3 D. & E. 174, Talluck et al. vs. Harris-1 Camp, N. P. 130, Bennett vs. Farnell.
¶4But here one of the defendants was merely a surety, and had received no money of the plaintiff. The only remaining mode to warrants recovery is in a count on the note as payable to bearer, after alleging that the nominal payee is fictitious. This construction of such an instrument has been opposed by. some eminent jurists, and in the Napoleon code such a note is declared void ; but still it has received the sanction in England of the courts of common pleas, king’s bench and parliament. 1 Hen. Bl. 321, Collis vs. Emmett; 607, Gibson et al. vs. Minet.— 3 D. & E. 182, Vere et al. vs. *448Lewis et al.; 483, Minet vs. Gibson—Chitt. Bills 58.—Sed. 1 Camp. N. P. 130.
¶5We are inclined to adopt this construction, in order to prevent the note from becoming a mere nullity, when founded on a full and fair consideration. Such construction jnjures nobody, and is no more forced than to hold, that when the name of the payee is left blank, “ it is the same thing as if “ the defendant had made the bill payable to bearer.” 2 Maul. & Selw. 91, Cruchly vs. Clarence.
¶6But to enable the plaintiff to recover under this view of the case, a new count must be filed, and for that purpose, the verdict be set aside, and the cause stand open for a new trial. On that trial the facts can be more fully investigated as to the person actually intended as payee in the bote.
¶7The patties, however, effected a compromise before judgment was entered ; and die plaintiff became nonsuit • t;--