
    Breed against Cook and Cadwell.
    Where on the thé\-enafedevJndor the premi?sory note of a third person, which he refuses to endarse, it is to as payment® cannot®aftertTtht\en®dee* "nasess foerg°^ lr \here -was fraud or misre* presentation on his part as to insolvency
    IN ERROR, on certiorari to a justice’s court.
    The defendants in error brought an action in the court belowagainst the plaintiff in error, forpart of the price of a horse sold by them to him. The price of the horse was 65 dollars ; , in part payment tor which tne defendant below delivered to _ i** sy* . , n — -. _ the plamtms a promissory note lor 23 dollars, drawn by one Fillmore, payable in six months to the defendant or bearer, When the note became due, Fillmore was utterly insolvent,
    It was proved, on the part of the defendant below, that at the time of the sale of the horse, the plaintiffs requested him to endorse the note ; this he refused to do, and stated that the maker of the note was as well known to the plain- . # * tiffs as to him; and that the plaintiffs, after inquiring into the solvency of the maker, finally agreed to take the note without endorsement. The justice decided, that the plaintiffs below not having made any special contract to take the note at their own risk, the defendant was liable for the amount of it; and rendered judgment accordingly.
   Per Curiam.

The justice erred. Admitting the rule of law to be as he apprehended, yet he clearly misapplied it; for the evidence in this case showed very satisfactorily that the vendors agreed to take the note at their own risk. The purchaser told them expressly that he would not endorse it, and there is no pretence of fraud. The decision in the case of Whitbeck v. Van Ness, (9 Johns. Rep. 409.) gives the true rule on this point, which is, that if a vendor of goods receive from the purchaser the note of a third person, at the time of the sale, (such note not being forged, and there being no fraud or misrepresentation on the part of the purchaser, as to the solvency of the maker,) it is deemed to have been accepted by the vendor in payment and satisfaction, unless the contrary be expressly proved.

Judgment reversed.  