#### Myers *against*J. D. Palmer and L. Palmer.

their names to a note for 2,000 The plaintiff defendants,* * him *R’’**°lend purpose*?tlle modation of the plaintiff, and il was agreed that *R.*should make a dollars, [aya-fendantsTwhe them^andthe coídingiy'enl Nviikh the plaintiff, without the privity .or consent of the endorsers, procured *R.*to fill up with a note for *four*thousand dollars: *Held)*that i)., a subsequent endorser, and the *maker%*were * ... in the filling1 up of the note. , Were competent witnesses to prove the fraud

the *Dutchess*circuit, in *August,*1819, the defendants called THIS was an action of *assumpsit,*brought by the plaintiff, as endorsee, against the defendants, as first endorsers of a promissory note, made by *Parley*Rice, dated the 2d of *March*1819, for 4,000 dollars, payable sixty days after date, to the defendants, or order. The note was also endorsed by *Robert Dingee. At*the trial, before Mr. Ch. Justice *Spencer,*at *Dingee,*the second endorser, as a witness, who was objected , *J*to, nut the objection was overruled by the Judge. He tes-tilled, that the plaintiff and *Rice*applied to the witness to endorse a note for 2,000 dollars, to enable the plaintiff to raise money for his own accommodation. The witness, at first, declined ; but the plaintiff told the witness, that if he would endorse the note, the defendants would also endorse *168it; after much conversation and persuasion, the witness. ancj defendants agreed, without any consideration, to lend the plaintiff their names, by endorsing a note to be drawn by *Rice*for 2,000 dollars. They accordingly endorsed their names upon a blank paper, and delivered it to *J. D. Palmer*to have it filled up with a note for 2,000 dollars. The plaintiff, without the privity or consent of the endorsers, persuaded *Rice*to draw the note for 4,000 dollars. *R.*the maker, was also called as a witness, and was objected to ; but the objection being overruled, he testified to the same facts. Several other witnesses were also produced on the part of the defendants. The plaintiff submitted to a non-suit, with leave to move the Court to set it aside, upon a case to be made.

The cause was submitted to the Court without argument, upon a statement of the points and authorities.

*Per Curiam.*

It is not objected that the witnesses were incompetent, on the ground of interest; but it is insisted that this case comes within the rule established in *Walter v. Shelly,*(1 *Term Rep.*296.) and which has been adopted by this Court; (*Winton*v. *Saidler,*3 Johns, *Cases,*185; *Coleman*v. *Wise,*2 *Johns. Rep.*165; *Baker*v. *Arnold,*1 Caines' *Rep.*258; *Woodhull*v. *Holmes,*10 *Johns. Rep.*231; *Skilding*and another v. *Warren, 15 Johns. Rep.*270.) to wit, that the party to a promissory note, as *maker*or *endorser,*shall not be admitted to impeach the original validity of the note to which they have given currency. It would, however, be a misapplication and abuse of this rule to extend it to this case. The reason and policy of the rule is, to guard and protect *bona fide*holders of negotiable paper, which they have honestly received in the usual course of business. Here • the *party*who asks the benefit of that rule, is the very person who committed the fraud in the inception of the note, which is now relied on by the defendants to annul the contract. The nonsuit ought to be confirmed.

Judgment of nonsuit.(a)

(a)

**Vide *Mann*v. *Swann.*14 *Johns. Rep.*270. *Hubbly*v. Brown, 16 *Johns. Rep.*70.