delivered the opinion of the court.
The plaintiff alleges that he is the holder of a promissory note, executed by the defendant in favor of Levi Guice, by whom it was endorsed in blank, and also transferred by notarial act to Ephraim K. Wilson, who also endorsed the same in blank, and transferred it by notarial act to Joseph Friend, who likewise endorsed it in blank, and transferred it by notarial act to George Row, by whom it was transferred to the petitioner, by mere delivery. There was judgment for the plaintiff and the defendant appealed.
The appellant insists that Row was in truth the owner of the note, on the 25th of August, 1837, the date of the institution of the suit; and to establish this fact relies upon the testimony of his counsel, Robert F. M'Guire, who declares that Row told him that the note sued on was his property, *463and that this declaration was made to him a very short time after the commencement of the suit.
Where the testimony shows the ownership of the note sued on to be in the plaintiff, at the institution of suit, he will recover, notwithstanding his attorney may have improperly erased the blank endorsements, showing the regular transfer .by endorsement to him.The witness, M'Guire, adverts in his testimony to the document marked D, in the records, which is signed by Row, and made part of the evidence in the case. In this document Row declares, that he transferred the note to the plaintiff in the month of June next preceding the institution of the suit; and moreover attests to all the endorsements set out in the petition.
From this testimony it clearly appears, that the ownership of the note was in the plaintiff at the time of the institution of the suit, independently of the presumption of property which the law attaches to the possession. It appears furthermore, that the blank endorsements on the note were erased by Copley, the plaintiff’s counsel, after it was put in his hands for collection. Whatever may have been the motive of the attorney in making the erasures, we think this unauthorized act ought not to prejudice the plaintiff, in whom the right to the note had fully vested.
We are of opinion that the judgment of the court below ought to be affirmed; but that it is not a proper case for damages as prayed for in the answer on the appeal.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.