
    VOORHIES against KERR.
    OÍT CERTIORARI.
    The action below was brought by Kerr, as indorsee of two notes against Yoorhies, as indorser. The [*] state of demand is very lengthy, setting out with great particularity and minuteness the transaction respecting the indorsement of the notes. Although, in describing the notes, they are mentioned as promissory notes, yet the maker of the note is styled obligor, and the notes, obligations. From this inacuracy in the phraseology of the state of demand, the counsel for the defendant below, Voorhies, who is the plaintiff in error, treated the notes as sealed instruments, and contended that this was the common case of an action brought by the assignee of a bond or sealed bill against the assignor, on failure of the obligor to pay. There were other objections which are taken notice of in the opinion delivered.
   PEiNmsrGToi*, J.

It appears to me that none of the reasons assigned for the reversal of this judgment are supported in point of fact by the record. This does not come within the cases of an action by the assignee of a sealed bill, or bond, against the assignor, on the failure of the obligor to pay. The instrument assigned is described in the state of demand as a promissory note. But supposing it was a sealed instrument, as it is contended, from the words obligor and obligation being made use of, yet fraud is alleged; it is charged that the defendant below, at the time of the indorsement, received full value for the notes; and stated that the maker was a good man, and able to pay; and if the notes were not good, he would make them good. The state of demand then avers, that the maker was not in good standing, and soon after went to jail, and took the benefit of the insolvent act • and that at the time of the assignment the defendant below [729] knew that the maker of the note was not in good standing, and that there were strong suspicions of his circumstances being bad; and that the defendant below purchased the notes at half their value, and this is found by the verdict, and is sufficient.

M’Donald, for plaintiff.

But it is also objected that the notes were not produced at the trial, or accounted for. This was matter of evidence, and does not appear on the record.

[*] It is also contended that the justice admitted illegal testimony; but this does not appear. I think that the judgment ought to be affirmed.

Kirkpatrick,.C. J.

There are five reasons assigned for the reversal of this judgment; but, upon the most careful inspection, I do not find that any one of them has any foundation in the record.

Rossell, J.

Of the same opinion.

Judgment affirmed.  