1. If the plaintiff took the note before it was due, for a valuable consideration, and in good faith, it was immaterial whether there was any consideration for it between the promisor and the payee. Hilton v. Smith, 5 Gray, 400. If there were a good consideration for the "note between the promisor and the payee, it was immaterial whether any consideration was paid by the plaintiff for the indorsement. But each of these propositions was controverted by the defendant; and upon each the burden of proof was upon the plaintiff, unless the other was proved or admitted. The note itself, its execution by the defendant being admitted, was prima facie evidence upon both points ; but, so long as either was in controversy, the burden of proof upon it remained with the plaintiff, and did not shift. Powers v. Russell, 13 Pick. 76; Delano v. Bartlett, 6 *414Cush. 364, and cases there cited; Hilton v. Smith, ubi supra; Morgan v. Morse, 13 Gray, 150.
We should have been inclined to suppose that the judge who presided at the trial, in instructing the jury that the burden of proof was upon the defendant, only intended to state that it was incumbent upon him to introduce some evidence to counteract or control the prima facie case made by the production ’ of the note; but his attention was afterwards expressly drawn to the point, by a separate and particular request for instructions upon it, and he refused to rule that the burden of proof did not shift. We therefore think there must be a new trial.
2. The denial by the defendant of each and every allegation in the plaintiff’s declaration we think was sufficient to make it incumbent upon the plaintiff to prove the execution and indorsement of the note declared on. Boston Relief & Subm. Co. v. Burnett, ante, p. 410.
The other exceptions taken we do not think can be supported.
Exceptions sustained.