Appeal from the District Court of the Fourth Judicial District.

This was an action against J, H. Baine and Silas H. Collins, on the following promissory note:

“ $1650. San Francisco, Dec. 21, 1854.

Ninety days after date, I promise to pay R. H. Vance or order, sixteen hundred and fifty dollars, with interest, at the rate of three per cent, per month until paid, for value received. Josiah Baine.

“ Attest: W. E. R. Hanscom.”

Which note is endorsed:

“ Holden on the within note without demand or notice.

“S. H. Collins.

“Attest: W. E. R. Hanscom.”

It is admitted that judgment had been entered by default against Baine on the note. Collins answered, denying that he agreed to be holden on said note without demand and without notice, as alleged in the complaint.

On the trial the plaintiff put in evidence the certificate of the notary protesting the note, which sets forth that the note was protested March 24, 1855, and that notice of protest was served on the endorsers March 26th, 1855, through the post office, to their address in San Francisco) in which city it was proved that the note was held for payment, and protested. The introduction of the certificate was objected to by defendant’s counsel, and excluded by the Court, the plaintiff excepting. The plaintiff then called Hanscom as a witness, who testified that he wrote the body of the note and endorsement; that Collins signed the endorsement as written out, containing the words “ without demand or notice.”

The defendant, Collins, called Baine as a witness, to whom the plaintiff objected on the ground that he was a party to the record as co-defendant with Collins, and' that he was interested in the event of the action. The objections were overruled by the Court, and Baine testified that when Collins signed the note, the words “ without demand or notice,” were not written therein.

The plaintiff’s counsel then asked the Court to charge the jury,

“ 1. That if Collins promised cfriginally, or acknowledged himself holden on said note for payment thereof to the plaintiff, that in such case defendant is liable if he signed his name to the words “ holden on the within note.”

“ 2. That a party defendant is not a competent witness for his co-defendant.”

These instructions were refused by the Court, who charged the jury that Collins was liable if he signed the endorsement as it appeared, but that if it had been altered without his knowledge since he signed it, by the insertion of the words “ without demand or notice,” he was not liable, and that this was the principal question for the jury to decide.

The jury found a verdict for defendant Collins.

Plaintiff moved for a new trial, which was overruled, and plaintiff appealed.