
    Frederick Spicer vs. Jared A. Smith.
    Where suit Is brought by the endorsee of a note •which had been endorsed by an agent of the payee, in behalf of the payee, it is incumbent on the plaintiff to prove the authority of the agont, tho endorsement and the ownership of the note.
    Error to Eaton Circuit.
   Opinion by

Graves, J.—

This was assumpsit, in which Smith declared against Spicer on the common counts, and set forth the Copy ot a note which was to be given in evidence. The following is a copy of the note :

“ Post-office address, Eaton Rapids, county of Eaton, State of Michigan, Town of Hamlin, May 12, 1869.

$150.

Five months after date I promise to pay to the order of Perkins & Chilson, one hundred and fifty dollars for value received with use.

(Stamp.) Signed, FREDERICK SPICER.”

O.n the back of the note was the following endorsement: “ Pay to the .order of Jared A. Smith. Perkins & Chilson, by H. H. Blair, agent.”

The general issue having been pleaded, the parties proceeded to trial before a jury, when Smith gave evidence tending to show that the note was purchased before its maturity by him through his agent, for value,'in the belief that there was no defence to it, and without notice of any objection to its validity. No affidavit having been made denying the execution of the note, it was then offered in evidence, when Spicer's counsel opposed its admission on the ground, first, that the endorsement by the payees had not been proved, and, second, because the authority of the agent by whom the endorsement purported to have been made had not been shown. The Court overruled the objection and admitted the note.

It was claimed for defendant in error that no proof of the endorsement was required, because neither the execution of such endorsement or the authority of Blair had been denied upon plea or upon oath, and reference was made to sections 3,714 and 3,767 Compiled Laics, and also to Rule 79 of. the Circuit Court.

Held, That the statutes cited have no application to cases originating in the Circuit Court, and if they had, they would furnish no support to the position taken. In this case the endorsee was not a party, nor was the endorsement as a ground of liability in any way involved. If the plaintiff had set forth his cause of action specially, he must have alleged the making of the note and its transfer to himself and must have proved each in the absence of any rule excusing it. By allowing the note to be given in evidence under the money counts the statute has not made the proof of these facts unnecessary. The rule, however, has provided that as against the alleged maker in a suit by the endorsee, payee or holder, the plaintiff shall not be put 'to proof of the execution of the instrument unless it is denied on oath, but the necessity for proving the title of the plaintiff through an alleged endorsement is neither removed or lessened. In this case the defendant did not deny the making of the note. But the plaintiff’s title was likewise in. issue and, as the rule had no relation to that, it was incumbent on the plaintiff to prove it. In this case it was incumbent upon the plaintiff to prove that the endorsement was made by Blair' and' that he had authority, and the admission of the note without evidence of plaintiff’s title was error. Judgment reversed with costs, and a new trial ordered.  