subsequently drew up the opinion of the Court On the question, for what sum the conditional judgment shall be rendered in favor of the plaintiff, as assignee of the mortgage, the Court are of opinion, that it must be for the two last instalments of the note only and interest. The indorsement on the note, of a receipt of payment of the first instalment, is prima facie evidence of payment; and the other facts agreed confirm, instead of rebutting this presumption. Payment by a negotiable note, shall operate as a discharge and extinguishment of a prior debt, when so intended by the parties. The rule of this Commonwealth differs from that of the common k.w, only in determining what shall be presumed to be the intent of the parties, from the fact of giving and accepting a negotiE.bIe note, for a simple contract debt. Without further evidence of intent, we construe it to be payment, but the common law deems it collateral security. But this presumption may be *232controlled by other evidence, and when ascertained, such intent shall govern. Maneely v. M'Gee, 6 Mass. R. 143.
In this case the evidence shows, that the new note was intended to operate as payment and extinguishment of the debt pro tanto, and not as the change of security for the same debt.
The cases cited are very distinguishable. Davis v. Maynard, 9 Mass. R. 242, was where a recognizance of record was taken in lieu of the note. The result is the same as if a judgment had been rendered on the note, a mere change in the form of the personal security for the same debt. Crane v. March, 4 Pick. 131, turns on other points. Watkins v. Hill, 8 Pick. 522, was decided on the ground, that the new note was a mere renewal, and not intended as payment of the debt. Pomroy v. Rice, 16 Pick. 22, was decided on the same ground.
Judgment for the plaintiff accordingly.