Palmer v. Tripp's Adm'r.

Mr. Chief Justice Murray concurred.

The defendants’ testator is charged in the declaration as the endorser of a promissory note. There is no averment of demand and notice. In order however to remove the necessity of demand and notice, it is averred that the endorser received from the maker of the note a conveyance of a large amount of property, greater in value than the amount of thé note, and upon the express stipulation that he should pay the note. To prove this averment, the maker of the note is called as a witness, and admitted to testify against the objection of the defendant.

It now is insisted that he is a competent witness, that his interest is equally balanced. This is evidently a mistaken position. Ordinarily the maker is a good witness against the endorser, because he is liable at all events, either to the holder, or if the endorser pays the holder, then to the endorser. But here the case is not of that ordinary class. No demand was made on the maker, and notice given to the endorser; so that the latter is not liable except upon the state of facts shewn in the declaration, which directly charges that the maker has already paid the endorser, and the latter has…