This rule must be discharged. There are two objections to giving judgment on the check, as the matter stands before the court. The proceeds were paid “ in satisfaction of the check,” and if that had not been averred, it does not appear that the check was ever presented for payment. Is then the receipt of the defendant for plaintiff’s note, “ which (he) will take up at maturity, being for (his) accommodation,” an instrument of writing for the payment of money, under the act of 28th March, 1835, entitling plaintiffs to judgment in this stage of the case. We think not. It is to be observed that on the note per se, the plaintiffs could not recover, because they are the drawers, and the defendant is an endorser. Then the affidavit taken in connexion with the receipt, shows that the note was to be taken up or paid at bank, and not to be paid to plaintiffs at maturity. On a proper state of pleadings, the plaintiffs may recover, but we cannot grant the judgment asked for under the special provisions of the act of 1835. (See 6 Watts 183.)
Rule discharged.