
    Isaac Nichols, Endorsee, vs. Peter Artman, Drawer.
    
    
      The endorser of a promissory note is a competent witness to prove in an action against the drawer that it has been paid.
    
    This was a case tried before the Recorder of the City Court in July Term, 1823. Assumpsit upon a promissory note. Pleas, non-assumpsit and discount.
    The plaintiff proved the hand writing of the defendant and of the endorser, and here rested his case.
    The defendant’s counsel offered Nelson, the endorser, as a witness to prove the payment of the note. This testimony was rejected. The defendant’s counsel then went into evidence to prove his discount, which consisted in a demand by the defen» dant against one John Riley.
    Mr. Petigru, the plaintiff’s co'unsel, was then examined by the defendant. Mr. Petigru, said that this note was conveyed to the plaintiff by Mrs. Nichols, for her use and benefit; that the assignment was net made by Mrs. Nichols until after the noté became due, but whether the plaintiiF had been in possession of the note before the execution o the assignment, the witness was ignorant.
    The defendant’s counsel then moved for a non-suit, upon the ground that the plaintiff was the assignee and not the endor-see* of the note; that therefore he could not declare as endorsee, but was bound under the act of. Assembly to have brought his action as assignee of the note. The motion was overruled. Mr. Riley’s examination under a commission was then read. He' said that he had loaned the money for which this note had been, given; that the money belonged to Mrs. Nichols and he had loaned it as her agent; that the note was originally for $50Q; but by renewals had been reduced to $
    Mr. Smith, examined by the defendant’s counsel, said, that in 1818 or 1819, he had paid Mrs. Nichols $1200, that some time afterwards, Mrs. Nichols told him she had delivered •the money to Mr. Riley, who was to loan it to a Mr. Keckeley. Upon being cross-examined, Mr. Smith said, that he understood that Mr. Riley was to loan the money to Mr. Keckeley on ac-count of Mrs. Nichols.
    The defendant’s counsel then offered his discount, alleging that it had been sufficiently shewn that Ililey loaned thc-money to the defendant, not as the agent of Mrs. Nichols but in his own name and on his own account; therefore that any demand which the defendant had against Riley, was a legal set off to this action. The recorder decided the discount to be inad-missable, as being not merely unsupported by the evidence, but directly contradicted by it. The case was submitted to the jury, and they found a verdict for the plaintiff. Notice was given, that a new trial would be moved for.
    For the motiojn, were cited; 1 Phil. Ev. 34; 1 Con. Dec.. 277. Against the motion. 1 Ji‘ Cord, 552; 2 M‘ Cord, 214.
   The opinion of the court was delivered h.y.

Mr. Justice JYott.

A statement of this case will be found in the recorder’s report; and the only ground which it is necessary to notice is that of having refused to permit the endorser of the note to he swons as a witness. There is no doubt but that he was a competent witness, and if the motion depended alone upon that question, it certainly would prevail. That point has been settled in the case of Smith & M'Dow. But the court concur in opinion with the recorder, that the testimony which he was about to give, (which was to establish the set off offered by the defendent) was inadmissible for the reasons therein stated. The motion therefore must be refused.

Bay, Johnson and Huger, Justices concurred.

Gantt, Justice, dubitante.  