delivered the opinion of the court.
This is an action against the payee of a promissory note endorsed by him in blank. The defendant pleaded a general denial, and set up several matters of defence on the merits, The only grounds which it becomes necessary to notice is, that the note was sold by the defendant to C. A. Warfield, a broker, at a discount of 12 per centum, under an agreement that he was in nowise to be responsible for its anoount. The want of. demand and notice are also relied on. There was judgment against the defendant for the amount of the note, without ^interest, and the plaintiff appealed.
The defendant and appellant has prayed the reversal of the judgment, on the grounds that he sold the note absolutely, and therefore incurred no liability as endorser; and that there is no proof of the demand and notice.
The defendant appears on the note as endorser, and has not shown that he did not incur the liability which attaches ' to him in that character.
The witness by whom usury is attempted to be proved, does not swear positively. He says, that, best of his recollection, the discount on the note was over ten percent.” In our opinion this testimony is insufficient, on r „ . • , mi - i , . account of its uncertainty. 1 he witness does not swear to any specific rate of discount, nor does he swear to any thing positively ; the words “ according to the best of his recollection,” implying, in some degree, that he did not very distinctly recollect. ¶. , accoiding to to©
Legal demand and notice were duly proved.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled and reversed, and that the plaintiffs recover from the defendant the sum of twelve hundred dollars, with interest at the rate of five per cent, per annum from the 4th March, 1831, until paid, and three dollars costs of protest, with costs in both courts.