
    HUBBARD & AL. vs. FULTON'S HEIRS.
    The maker of a note cannot avail himself against a fair endorsee, of an equity that would have destroyed the claim of the original payee.
    Appeal from the court of the sixth district.
   Martin, J.

delivered the opinion of the court. The plaintiffs, as endorsees, brought this action on a note of the ancestor of the defendants to James Rogers. The defendant pleaded the general issue and that the note was given in discharge of a judgment, obtained by Rogers, as curator of the estate of A. Phillips, deceased—that the said James Rogers was recognised as heir of Phillips by a judgment of the district court, which has since been reversed, and Thomas Rogers, who was recognised by the supreme court, has brought suit for the amount of the judgment intended to be paid by the note sued upon—so that the defendants, if they fail in the present suit, will have to pay the same sum twice.

West'n District.

September, 1820.

Baldwin for the plaintiff, Scott for the defendant.

The execution of the note and its endorsement were admitted and the allegations of the answer, out of the plea of the general issue, proven.

There was judgment for the plaintiffs and the defendants appealed.

Altho' the matter pleaded in avoidance of the claim would have affected it, in the hand of the original payee of the note, it cannot do so in the hands of a fair endorsee.

It is therefore, ordered, adjudged and decred, that the judgment of the district court be affirmed with costs.  