
    Chauncey Bush v. D. R. Ellsworth.
    
      Quaere: Is the plaintiff in assumpsit by him, as indorsee against the maker of a note, upon the plea of non assumpsit, without affidavit, under the law of Ohio, bound to prove the indorsement of the note?
    Error from Huron. The plaintiff declared in the court below, as indorsee of a promissory note against the defendant as maker. Non assumpsit was pleaded without affidavit, and issue taken. At the trial in the common picas, the plaintiff offered no evidence of the indorsement of the note, and the court held such evidence necessary to enable him to recover. A verdict and judgment was rendered in favor of the defendant, to reverse which, for the error of the court in requiring such proof, this writ is brought.
    The act of assembly of January 21, 1817, dispensing with proof in certain cases, 18 Ohio L. 13, provides, so far as relates to the matter before the court, “that upon plea of non assumpsit or nihil debet, offered by the person charged as the maker of any promissory note, it shall not be necessary for the plaintiff to prove the execution of the note upon which suit is brought, unless the party offering such plea shall make affidavit of the truth thereof.”
    On December 18, 1823, 29 Ohio L. 123, this act was revised and extended to embrace other subjects, and. as to the matter under consideration, was made to read, “that upon plea of non assumpsit or nihil debet, offered by the person charged as the maker or indorser of any promissory note or bill of exchange, it shall not be necessary for the plaintiff to prove the making or indorsing of tha note or bill of exchange upon which suit is brought, unless the party offering such plea shall make affidavit of the truth thereof.”
    *The single question in the case was, whether, under the [169 last law, the plaintiff was required, under the plea of non assumpsit, without affidavit, to prove the indorsement of the note.
   The Court

was divided in opinion, Judges Collett and Wood being of opinion that the plaintiff was bound to prove the indorsement of the note;

Judges Lane and Wright being of a contrary opinion.

Judgment affirmed.  