Opinion of the Court, the
Hon. Carroll C. Boggs, Judge.This was an action brought by the appellant to recover upon a note given by appellees to one Tibbitts, who indorsed it to the appellant. A trial before a jury resulted in a verdict and judgment against the appellant. It is not questioned but that the appellees established a good defense as against the original payee. -The only material question arising is whether the appellant purchased the note before or after maturity, the defense failing if the purchase was before the note fell due. The indorsement upon the note is without date, and the actual time of the transfer is not proven. The presumption of law is that the note was transferred before maturity. This presumption is, however, slight and weak, and may be overcome and rebutted by proof. Parson’s Notes and Bills, Vol. 1, page 255; Daniel’s Negotiable Instruments, Sec. 784, Vol. 1.
Pacts and circumstances were proven tending to show that the note was past due when appellant purchased it, and we are not prepared to say such evidence was insufficient to overcome the legal presumption to the contrary, weak and slight as such presumption is. Complaint is made that the court admitted evidence relating to the failure of the consideration of the note before all the evidence bearing upon the question of the date of its transfer was offered.
The order in which competent evidence shall be received is largely in the discretion of the court, and not subject to review except the discretion is clearly abused. We do not think the appellant has just grounds of complaint of the action of the court in this respect.
Pinding no error the judgment is affirmed.