By the Court,

This case comes up on a bill of exceptions, and we shall therefore examine and dispose of each of the material questions therein raised in thei* order. And first, was it necessary that the blank endorsement on the note should have been *et forth in the declaration or given with the copy I We think not. The statute requires that a copy of the instrument of writing on which the suit was brought should be filed with the declaration. In the case of an ordinary negotiable note, where the suit is brought in the name of the assignee, such endorsement becomes a material part of the instrument. It is absolutely necessary that it should be set forth, in order to avoid the effect of a general demurrer.

But in the case of a note not negotiable the case is different. The plaintiff in the first instance is not bound to set forth or prove the assignment at all. Such proof only becomes necessary where the defence set up can only be defeated in consequence of the assignment, Swan’s Treatise 208-9. It was not even Decessary that the name of the assignee should have appeared on the docket, provided, that after the production of the receipt from Lahussier, the plaintiff had proved the assignment and notice to the defendants of a date prior to that of the receipt. The endorsement is not therefore a part of the instrument declared on, but is merely to be used by way of rebutting evidence upon a certain contingency, and is no more nqcessary to have been set out in the copy ¿filed with the declaration, than though such evidence had been contained in a separate instrument, or than though it had been by parol.

In the nest place, as to the receipt. This was wholly nugatory, if ;the note had been previously assigned and knowledge thereof communicated to the defendants. No formal notice for this purpose was necessary. It is enough if from the facts and circumstances it may be fairly presumed, that the debtor had positive notice of the assignment, 12 Johns. Reports 343. The name of the assignee being mentioned in the summons, was we think; sufficient notice to the defendants that *118he was benifleially interested, and if they paid money to Labussier af-terwards, it was at their own peril. Swan’s Treatise, 208.

Whether the legal interest in the note was or was not, in Huner, cannot affect this case, except that it may in the former case be contended that the suit should have been brought in his name directly. The instruction in that case asked by the plaintiff would have been pointedly against himself; and if there was error in the instruction of the court, that error was in favor of the defendants. At all events, we see nothing in this point which should work a reversal of the judgment.

TJhe only question that remains to be disposed of is in relation to the sufficiency of the proof of assignment. Was the blank endorsement of itself, prima facie evidence of this fact, or, after Labusssier’s receipt in full had been produced, was a special assignment to Huner necessary tobe proved? We are clearly of the opinion that no formal transfer was necessary to be shown. We also think that the endorsement in blank, is of itself presumptive evidence of the assignment, that it is equiv-olent to a power of attorney authourizing the holder to sue in the name of the endorser, and to apply the avails to his own use; that the assign-ee may at any time, even in court, fill up the endorsement to this effect, and that if not filled up, this will be deemed the import and construction of it. Swift’s Digest, 434. We are of the opinion, therefore, that the blank endorsement, and the possession of the note by Huner, were sufficient to create the legal presumption of an assignment of the note to him, and that this instruction of the court to the jury was also correct. The judgment of the court below will therefore be affirmed.