The only question is, whether the county court properly excluded the note offered in evidence from the jury, and the propriety of its decision depends upon the fact, whether or not the note was indorsed by Butler, the payee. The two notes are written upon the same piece of paper. The name of the payee, Butler, is written upon each *621note; but instead of being written, as is usual, across the notes, is written lengthwise. The name upon the excluded note appears between two receipts thereon indorsed, which receipts cover the back of the note so as to leave no space for an indorsement, except beneath or between them. It is insisted by the counsel for the defendant in error, that the name is but the signature of the payee to the receipt, and was not intended as an indorsement. This position is repelled to some extent by the fact that the payee did not think it necessary to sign the receipt, as is shown by his failing to place his signature to the one last indorsed. This circumstance, coupled with the further fact, that the name was written on the only blank space upon the back of the note, where it could well have been placed, we think was sufficient, in the absence of a sworn plea denying the indorsement, to authorize its admission as evidence. The defendant was advised by the declaration which averred the indorsement, that the signature was regarded as passing the title to the note. The statute dispenses with proof of the assignment, unless defendant denies it under oath. Digest, 341, <§. 158. Now we think, under the facts of the case, the note was prima facie admissible, as the defendant did not choose to put the plaintiff on proof that the party designed by his signature to pass the title to it. It may often be a very difficult question to determine from the paper itself, whether the signature was designed as an indorsement, or may not be referred to some preceding receipt or memorandum upon the note. The true rule is, when the defendant fails to controvert the indorsement by plea, and the signature appears upon the note which is averred to be an indorsement, to allow the note to go to the jury. See the authorities upon the brief of the plaintiff’s counsel.
Judgment reversed and cause remanded.