The opinion of the court "was delivered, by
Strong, J.
When Tredwell was offered as a witness, there was nothing in the case to show that he was under any liability to the plaintiffs in case of their failure to recover from the defendant. They had not placed the note in his hands for collection. He had not been their agent, and he had therefore no such direct, certain, and immediate interest as to render him incompetent to testify. There is nothing, therefore, in the first assignment of error.
The answer of the court to the second and third points of the defendant below, must be considered in reference to the undisputed facts of the case. On the day the note was matured, Tredwell called with it at the banking-house where it was payable. Neither Ross Forward, nor the drawers, had then any money there. The drawers never had. Tredwell was informed that Forward had no money in bank. Mr. Scull, the defendant, •was then informed that Tredwell had been at the bank with a note, and replied that it was his note. On the same day he endorsed the note as follows : “I hereby waive notice of protest for non-payment in this case. E. Scull, October 13th 1859.” Let it be, that a waiver of notice of protest will not excuse the holder from making a "demand, in the face of the undisputed facts in evidence, it was not for the defendant to complain that no sufficient demand had been made. Beyond the direct evidence of an actual demand, there was the fact that the drawers had no funds in the bank. It was with these facts in view, and unquestioned, the judge charged the jury, that under the evidence there was substantially a demand made, and instructed them that the plaintiffs were entitled to recover. This instruction was correct. If it was not accurate to make the abstract remark, that a demand is not necessary where there is a waiver of notice of protest, it could have done the plaintiff in error no possible harm.
Judgment affirmed.