*104 By the Court,
Marcy, J.The plaintiffs having set forth jn ftle¡r declaration the transfer of the note from Crocker and Badger to themselves, were bound to prove it. There was Pr0°f that Crocker and Badger were partners. It was therefore only necessary to shew the endorsement by either of them. (Bayley on Bills, 40.) There was no proof whatever that the endorsement was made by Crocker; and so light was the evidence of its having been made by Badger, that it would have been scarcely sufficient to uphold a verdict for the plaintiffs, if the question as to its sufficiency had been properly submitted to the jury. I think the judge erred in not leaving it to the jury, under proper instructions, to say whether the endorsement was or was not the hand writing of Badger. On this ground, I am for granting a new trial. It is not necessary to consider the other points raised on the argument.
New trial granted.