The first petition stated that the plaintiff was endorser of the notes in question—that after wards he transferred them to Jones, who had brought suit for the recovery of the amount—that the defendants were jointly liable, and prayed that they should be decreed to pay in solido the amount of the judgment to be recovered against him. The defendants pleaded that they were not liable^ until the plaintiff should have paid the amount of the notes. Afterwards, on the 17th of March, on motion of plaintiff’s counsel, it was ordered by the Court, that he have leave to amend the pleadings by filing a supplemental petition, which was done ; and the petition set forth that the plaintiff had paid the notes, and -therefore prayed that the defendants might be condemned in principal, interest, and costs. The defendants answered, that at the time of bringing the action, the plaintiff was not the holder, and therefore the suit could not be maintained. On the 14th of April, it was decreed that the plaintiff had no property in the notes, and consequently no right of action.

Th e Court are of opinion that the Judge below should either have refused the supplemental petition, and then have decided on the right to recover in guaranty ; or having received it, to have determined the merits of the case on the original and supplemental petitions and answers : this has not been done. The fact on which the case was decided, was not as is stated in the judgment, nor did the defendants pretend that it was so. It was alledged in the supplemental petition, that Lanusse had paid Jones, and was then the actual holder; the defendants did not deny that, at the period of filing the supplemental petition, La-nusse was the holder; but answered that he was not the holder, at the time of commencing the suit. The Court, however, decreed that he (had no property in the notes, and consequently could not support the action. We must believe that the Judge below did not act upon the supplemental petition and answer ; and thinking, as the Court does, that in this he erred, it is ordered and decreed that the judgment below be reversed, and that the case be remanded to the District Court, with instructions to proceed to trial on the original and supplemental petitions and answers as one case.