*478The opinion of the Court was by
Weston C. J.There is no evidence of any valid assignment of the note in question to Samuel Dennett, nor is any such fact assumed in the instructions of the Judge. By an indorsement on the writ, it is stated to have been commenced for the benefit of Dennett, as the party in interest. That is an affair between the plaintiffs and Dennett, but affords no matter of defence, unless it appeared, that the note had been paid to him, which is not pretended. The plaintiffs on record do not disavow the suit, and if recovered in their names, they will be answerable in their representative capacity, for its due appropriation. That is a question, which does not concern the defendants. The note is evidence of a debt against them, which is recoverable at law, unless it has been paid.
The only legal point in the case is, whether on the evidence offered of payment, the jury were properly instructed. The receipt was prima facie evidence of that fact; but it was not conclusive, and was open to be contradicted by any testimony, which might fairly bear against it. The leading case of StacJcpole v. Arnold, 11 Mass. JR. 27, is an authority to this effect, which is in accordance with the uniform practice of our Courts. The same principle is more fully laid down in Harden v. Gordon & al., 2 Mason, 541, and it is well sustained by these and other decisions, cited for the plaintiffs.
But it is contended, that there existed no testimony, which made it necessary or proper, to present this view of the law to the consideration of the jury. The receipt was evidence, that the note was paid in June, 1835. Dorrance, one of the defendants, and a joint promisor of the note, on the 23d of October following, by fair implication from his letter of that date, admits the note to be due and unpaid. This was evidence against the receipt, which was properly left to the jury. It was their province to determine the fact. The instructions of the Judge appear to us to have been in conformity with law.
.Deceptions overruled.