When the owners of the note sued the bank, it was enough for them to prove that they had sustained damage by the neglect of the hank to give notice to the endorser in proper time, without proving that the fault was chargeable upon any particular officer of the bank; and the judgment which was given in evidence, even as between the parties to it, did not establish the fact that the defendant was chargeable with negligence. The judgment was properly received in evidence for the purpose of showing that there had been a recovery against the plaintiffs, and what amount of damages they had been compelled to pay. But it was not evidence against the defendant for any other purpose. This was not a case where a recovery over had either been given by law, or provided for by the contract of the parties. Whether the plaintiffs could charge the loss upon the defendant or not, depended upon the question whether they could show that it happened in consequence of his culpable negligence. That question should have been left to the jury, with the instruction that in deciding it they should lay out of view the fact that a judgment had been recovered against the plaintiffs. The charge was, I think, calculated to mislead the jury, and on that ground the verdipt must be set aside.
New trial granted.