delivered the opinion of the court.
The defendant appeals from a judgment rendered against him, as the maker of a promissory note, dated March 4, 1837, payable twelve months after date, to the order of Silas Lillard, for five thousand five hundred dollars, secured by mortgage on a tract of land and several slaves. He does not deny the justice of the demand, but relies upon objections, to avoid payment, most of which are more technical than sound.
The first objection is a variance between the note set out in the petition, and the one offered in evidence. It is not denied that the note is that of the defendant, or that it does not appear to have been endorsed to plaintiff, though the suffici*324ency of the evidence of the endorsements is questioned. The alleged variance consists in the petition not setting forth that certain special endorsements were on the back of the note, subsequent to that of the present plaintiff, which, when the note was produced, had been erased. The counsel for the appellant contends, the plaintiff should have set out in his petition .these several endorsements, and the reason why they were erased ; also, that he should trace back into himself the title to the note, before he could recover. We do not think so. In the case of Huie vs. Bailey, argued and decided at the present term, ante 213, we had the same question presented ; and in connection with this case, we have examined all the decisions of this court, and the various authorities relied upon, and refer to our conclusions in it. The note is endorsed in blank by the payee and all the endorsers who precede the plaintiff. He had a right to strike out all subsequent, endorsements and recover on it, unless something is shown to rebut his prima facie title to it, by possession.
The holder of a note, endorsed in blank by the payee,and others whose names pre cede that of the plaintiffhimself, he may strike out all the subsequent and special endorsements, and recover against the maker. Where a commission to take the deposition of witnesses, is directed to a person by name, as a commissioner in another state, there is no necessity of proving his signature.We have looked into the cases cited by the defendant’s counsel. They do not apply to this case. They assert a principle as old as suits have been known, that the allegations and the proof must agree. In this case there is no allegation relative to the erased endorsements, and it was not necessary for the plaintiff to say any thing about them, or allude to them, any more than he would to any other immaterial memorandum on it. They were of no effect: 6 Martin, N. S., 649.
A commission was sent to James B. Jones and three other persons, or either of them, in Rappahannock county, in the state of Virginia, to take the testimony of three witnesses who are named. Jones took three depositions, and returned them. But, it is alleged, one of them is not the person named in the commission. These depositions were objected to:
1. Because there is no proof of the signature of the commissioner, Jones. We do not, consider it necessary. The court had a right, under the 437th article of the Code of Practice, to appoint a commissioner, or any number of them, and having done so by name, it approaches very nearly to an ab*325surdity, to contend his signature should be proved, and thus make it necessary to send another commission to obtain evidence of it.
If tlie return or certificate of the commissioner is attached to the deposition by a wafer, and returned with it, it is sufficient Where a note and protest are permitted to be read in evidence, without objection,it is too late to question the signatures thereto, for want of proof.2. It is contended, the depositions of all the witnesses ought to be rejected, because a mistake has been made in the name of one of them. We know of no law requiring or authorizing it; and as the depositions of two of the witnesses are properly taken, and they prove enough to sustain the judgment, we deem it unnecessary, to decide upon the deposition of the third witness.
3. It is said the depositions are not properly authenticated, as the certificate of the commissioner is on a separate piece of paper. That is true ; but it is attached with a wafer to the depositions, and returned with them, and presented to the court at the same time. That is a sufficient compliance with the law.
4. It is said the plaintiff has not shown a title to the note. The defendant has not impeached his prima facie right of possession, and if he had, the evidence is very sufficient to show the note belongs to the plaintiff. Two witnesses swear to the signatures of all the endorsers except the first, and the defendant having permitted the note and protest to be read as evidence, without objection upon that point, it is too late to question it now.
So far from seeing any thing that requires us to disturb the judgment, we should have felt ourselves bound to give damages for a frivolous appeal, if it were not that the case comes up at a time when the court was examining its previous opinions, relative to the erasing of special endorsements.
The judgment of the District Court is, therefore, affirmed, with costs.