The opinion of the court was delivered, May 10th 1862, by
Woodward, J.This is an action by an endorsee of negotiable paper against a prior endorser, and the only question is, whether the maker was a competent witness to prove the agreement alleged in the offer. The cases cited show that he was not competent. Counsel do not pat-ry these cases by showing that Bodey had negotiated the note, and received it back after protest. This is an unimportant circumstance. He was a.s truly a bond fide holder as if he had never parted with the note. It is the duty of an endorser to receive back and pay after protest, the bill he negotiated, and when he does so, the relation between him and prior endorsers is the same as if the protest had happened whilst he held the paper.
The substance of the alleged agreement would be competent evidence, for if the three endorsers agreed to share the loss equally, they ought to be held to contribution, but Lancaster was incompetent to prove the agreement, and therefore the ruling was right.
The judgment is affirmed.