delivered the opinion of the court. This is an action brought by the holder of a promissory note, against an endorser, who resists its payment on account of notice not having been given him of the maker’s refusal to pay. Notice is not alledged in the petition, nor does it appear by the record, that any proof was given of it on the trial below. We are**therefore, of opinion that the judgment which was given for the plaintiff is erroneous.

It is, therefore, ordered, adjudged and decreed that it be annulled, avoided and reversed, and that there be judgment for the defendant as in case of a nonsuit, and that the plaiutiff and appellee pay costs in both courts.