M‘Donald against Rainor and Vantine.
in an action^by p/'omissorynote" her, brought the’^ie&ndant note,ehadlabeen endorsed by the payee, an cl that the endorsee had sued the defemiant on the other justice" that'!nPihatsurt jected'to the°tinle of the endorsee, or to some defect in the endorsement, in eonsenorecoveiy'was it wás'heid"that bar P'and'Vathat the defendant could not, in this suit, set u;. the "endorse® ment as good, which he had, in the former suit, shown, or attempted to show, to be bad.*
IN error, on certiorari, from a justice’s court,
The defendants in error brought an action against the plHintift in error, and declared against him on a note drawn by him to them for 14 dollars and 65 cents, dated 13th April, 1809; also, on'an account, for eleven bushels of oats, and on an order, in favour of Edmund Rogers, to . & i the amount of one dollar. To the note, the plaintiff spe- . 1 1 cially pleaded, that it had been endorsed to yames P* German, and not endorsed back to the plaintiff; and further, that he had been sued by German, and discharged by the jury from the note, and that the endórsement was void, because Rainor had made use of Vantine’s name, in the endorsement. To the residue of the plain- , . tifFs demand, the defendant pleaded non assumpsit, and a set-off. On the trial, the defendant admitted himself answerable for the order, and there was some circumstantlal evidence about the oats, and positive proof as to delivery of part. The defendant then introduced the re- . cord of a trial in a cause, in which he was plaintiff *443against James P. German, wherein it appeared, that German attempted to set off this note, and that M'Donald objected to its allowance, alleging the endorsement to be illegal, because Vantine had not signed it. And the jury who tried the cause, after returning to give their verdict, delivered the note to the justice to be returned to German. The plaintiff then offered to prove, by several of the jurors who tried the cause, mentioned in the record which the defendant introduced to show that the note was not allowed to German. This evidence p was objected to, but admitted, and that fact was fully proved by several of the jurors.
The justice then stated in his return, that after hearing the proof and allegations of the parties, and taking four d i s to consider, he gave judgment for the plaintiffs, for SI dollars and IS cents.
Per Curiam.
The judgment must be affirmed. The proof, as to all the demands of the plaintiffs below, exclusive of the note, was clearly such as could not warrant this court in reversing the judgment on that ground; and the circumstances relative to the note were sufficient to authorize the justice to allow it. It is unnecessary to say whether the justice was correct or not, in admitting the jurors, on the trial between the defendant and German, as witnesses, to prove what was then done with respect to this note. This testimony was immaterial, and went to establish nothing more than what the defendant himself had proved, by the record of that trial.
This record shows that the plaintiff in error objected against the payment of the note to German, on account of some defect in the endorsement, so that the title to the note was not vested in German. This objection prevailed, and he avoided a payment to German, and he shall not now be allowed, in opposition to his own proof, to say the endorsement to German was good. But admitting that he might set this up, there was no evidence of*444fered, by the defendant below, to show that the note had been endorsed, or that the plaintiffs had ever, in any way, parted with their interest in it; and if not, there could be no objection against their recovering it from the defendant, who, clearly, by his own showing, has never paid it to any person.
Judgment affirmed.