
    Warner’s Executors vs. Spencer.
    Pet. & Sum. Case 1X4,
    Erior to the Jessamine Circuit; Kelley, Judge.
    
      Demurrer. Endorsement. Obliteration. Plea.
    
    If defendant dosiretoavi.il himseK oi an Up0n ;i note, he must shew contract and the obliteralionwaswitlv ontins assent. Demurrer w.fl) r,ot avail,
    
      May 9.
   Chief Justice Robertson

delivered the Opinion of the Court.

The circuit court sustained a demurrer to a petition and summons on a promissory note for money; and this writ of error is prosecuted to reverge that judgment.

Hewitt and Chinn, for plaintiffs.

No sufficient reason for sustaining the demurrer, •has been perceived. The only.reason assigned is; that an obliterated endorsemet appeared on the note. That endorsement does not appear to have ever constituted any part of tiie contract between the parties, or to have been ever made by either of them for that or any other purpose. If it had been a part of their contract, and had.been obliterated by the obligee without the assent of the obligor, that fact would be important, but should be pleaded. It cannot be made to appear on demurrer to the petition,

_ Judgment reversed, and cause remanded, with instructions to overrule the demurrer.  