delivered the opinion of the Court. The plaintiff declared as indorsee of a promissory note payable on demand ; and the defendant relied upon proof of payment, made to the promisee, before the note was indorsed to the plaintiff. The only question raised by the report is, whether the testimony of Goodhue was competent to go to the jury, and if so, whether it was prima facie evidence to warrant them in finding that Daniel Stevens, the promisee, was the holder of the note declared on, as late as the 30th of July, 1831. He fixes the date by a bond of indemnity, which he and his brother gave to Stevens to indemnify him, against another note then made by the defendant, as principal, and by Daniel Stevens, as surety, and negotiated at the Lowell Bank. The evidence tends strongly to show that Daniel Stevens then held some note against Bruce, upon which a payment was made from the money thus raised ; it is not shown, that Daniel Stevens then held any other note of the defendant; it was apparently in the power of Stevens, the plaintiff, to prove by Daniel Stevens, that this note was indorsed to him before that time, if such was the fact. In this state of the case, the Court are of opinion, that the evidence was competent to go to the jury, and that they were warranted to infer from it, (bat Daniel Stevens was at that time the holder of the note declared on and that it was not indorsed to the plaintiff till after that time
Judgment on the verdict for the defendant