delivered the opinion of the Court :
This was an action of assumpsit brought by the Bank, as endorsees of a promissory note, against Gillham, the maker.
The declaration states that the note was payable to John Hogan and Henry H. West, under the name of John Hogan & Co., and that John Hogan and Co., together with Benjamin Clifford, Jr., endorsed the note to the plaintiffs below..
The defendant below pleaded non assumpsit. On the trial of the cause, after the plaintiffs had introduced their testimony, the defendant below demurred to the same, as insufficient to sustain the action, to which the plaintiff joined. The demurrer states that the plaintiffs produced in evidence to the jury a note as follows :
“ $ 380.
“ Alton, June 21, 1838. Sixty days after date, I promise to pay to the order of John Hogan & Co., three hundred and eighty dollars, for value received, negotiable and payable at the Branch of the State Bank at Alton. Wm. Gillham.
“ Credit John Hogan & Co.
“ B. Clifford, Jr.”
On which note are the following names endorsed in blank : “ John Hogan & Co., B. Clifford, Jr.” The plaintiffs proved, and it was admitted by the defendant’s counsel, that the signature “John Hogan 8c Co.” endorsed on said note, was the proper bandwriting of John Hogan & Co., the payees of said note, and that the signature “ B. Clifford Jr.,” was the proper handwriting of B. Clifford, Jr. The plaintiffs produced in evidence the “ Act to incorporate the subscribers to the Bank of the State of Illinois; ” (1) which was all the evidence offered by the plaintiffs. The Court below considered the evidence sufficient, and gave judgment for the plaintiffs.
The assignment of errors questions the sufficiency of the evidence to sustain the action.
It is urged in the written argument, that the endorsement on the note should have been filled up to the plaintiffs, or they should have proved that they were the legal holders of the note. This was unnecessary. The production of the note by the plaintiffs below, with a blank endorsement, was prima facie evidence that they were the endorsees.
The filling of a blank endorsement is a mere matter of form, and may be dispensed with altogether. At all events, after the note had been read to the jury without objection, it is too late to question the plaintiffs’ right to sue as endorsees. (2)
In the case of Jackson v. Davis,(3) it was held, “ If an objection which can be obviated by further proof, be not taken, or is not persisted on, at the trial, it will not be received as the ground of a motion for a new trial.” Had the defendant objected to the reading of the note to the jury, upon either of the grounds assumed, the plaintiffs could have filled up the blank, or proved their legal right as holders. The note must therefore be considered as admitted in evidence by consent.
The other ground assumed by the counsel for the plaintiff in error, that there was a variance between the declaration and the evidence, is not sustained by the record. The proof corresponds in all essential particulars with the declaration. Had the defendant below demurred to the declaration, the question could have been raised as to what interest, and for what reason, B. Clifford, Jr. endorsed his name on the note. It might then, perhaps, have been contended, with success, that the declaration was defective in point of form, for not averring an endorsement from Hogan & Co. to Clifford, and from Clifford to the plaintiffs. This objection, however, cannot be made on a demurrer to evidence.
The judgment is consequently affirmed with costs.
Judgment affirmed.
Acts of 1835, 37 ; Gale’s Stat. 93.
Bayley on Bills 106.
5 Cowen 123.