¶1It is not necessary to decide that no state of facts can be shown that would entitle the payee and first in-' dorser of a negotiable note to maintain an action against a second indorser, and charge him as such; although,for myself, I entertain great doubts whether any evidence of a parol agreement, varying the legal rights and obligation of the parties, ought to be, or would now be admitted. It is sufficient now to say that the action is certainly not maintainable upon the facts set forth in this complaint, and that the demurrer must be allowed. (3 Sand. Rep. 647; 2 Duer Rep. 40; SKer.R.)
¶2Judgment for the defendant M. J. Merchant, with usual liberty to plaintiff to amend upon payment of costs.