
    
      FOSTER vs. RANDOLPH.
    
    APPEAL from the court of the third district.
    If the petition does not shew notice to the endorser, the judgment ought not be final-but the plaintiff should be non-suited.
   MARTIN, J.

delivered the opinion of the court. In this case a number of bills of exceptions were taken, but the insufficiency of the petition, and proof render it useless to examine them, principally as the state of the record does not enable us to pass on the merits of the case.

The defendant is sued as endorser of a promisory note of hand, there is neither allegation nor proof of notice, to him of the default of payment, but the judgment ought not to conclude plaintiff.

East'n District.

May, 1824.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided, and reversed, and that there be judgment as in case of nonsuit. Costs to be paid to plaintiff in the district court and the defendant and appellee in this.  