This was an action on a promissory note by the endorsee against the endorser. It was transferred to the Plaintiff, before maturity, in part payment of a stock of goods sold by him to the maker. The Defendant alleged that his endorsement was procured by fraud, and offered to prove by Callender, the maker, that he communicated to the Defendant various representations set forth in his answer, which had been made by the Plaintiff to him to induce the Defendant to endorse the note. These representations, he alleged, were untrue. The counsel for the Plaintiff objected to the evidence, and the Judge sustained the objection, unless the Defendant would prove a combination between the Plaintiff and Callender to procure the endorsement.

Afterwards the Plaintiff’s counsel consented that any proof might be introduced, and that the pleadings be considered as amended according to the facts. The Defendant’s counsel then introduced the Plaintiff to prove the alleged fraud, but no fraud was proved. Plaintiff proved the sale, and that the note was given in part payment of a stock of goods sold for $5,000,

The judgment should be affirmed, with costs, and ten per cent, damages.

All concur.

Affirmed.

JOEL TIFFANY,

State Reporter.