
    Williams et al., Plaintiffs in Error, vs. Smith, Defendant in Error.
    1. A protest of a non-negotiable note, being unauthorized, cannot be used as evidence.
    2. An erased endorsement on the back of a note is no evidence of a transfer.
    
      Error to Jackson Próbate and Com,7non Pleas Court.
    
    Action by the payees against the maker of a note executed in Philadelphia, not negotiable under our statute. The de-fence was, that the plaintiffs had “ assigned the note by endorsement to Robert Aull, and that the same had not been reassigned to plaintiffs.” At the trial, the defendant offered to read, as evidence of the assignment, the protest annexed to the note, showing that it was protested “ at the request of Robert Aull, the holder,” and also an erased endorsement on the back of the note from plaintiffs to Aull; but this evidence was excluded, and after judgment against him, the defendant sued out a writ of error.
    
      Reid, for plaintiff in error,
    cited 15 Mo. Rep. 68. 8 Mo, Rep. 570. 14 Mo. Rep. 428. Litt. Select Cases, 208.
    No brief or appearance for defendant in error.
   Scott, Judge,

delivered the opinion of the court.

It may be seen from the words of the note sued on, that it was not a negotiable one, .within the meaning of the 15th section of the act concerning bills of exchange and negotiable promissory notes.

The note, not being negotiable within the meaning of the statute, there was no authority to protest it; consequently, any protest made of it could not be received as legal evidence. The blank endorsement of the names of the payees is not evidence of a transfer of the note, as it was erased, and as there was no proof that the note ever had been endorsed to any one. The payees may have contemplated a transfer, and afterwards have changed their minds. In the case of Davis v. Christy, there was evidence that the note had actually been transferred, and it was held that the destruction of the evidence of the transfer would not divest the title of the assignee. Here, it does not appear that the note ever had been assigned.

The other judges concurring, the judgment will be affirmed.  