
    Sanders and Ogden against Bacon and another.
    Where a. gave s°ry note payaaTtiíe ^"TndOTLment “o'b’edeliver.ed t0 ,B- in. consideration of a judgment against C. to he assigned to a. held that The missoTy8 anote¡ y.tlml t'ie .3ta' be declared on as such, notwithstanding the whichwas me’re-i^nsWerationf16 a“da ^otice^to "“the ”¡“eei(le®¡‘dryhof the note was tip/írtít ¡cíete eviiience of an as-judgment.^ tiie
    IN error, from the court of common pleas of Saratoga county. The plaintiffs in error brought an action of assumpsit against the defendants in the court below. The declaration was in the usual form, on a promissory note under the statute. At the trial of the cause, the plaintiffs eave in evidence a note, signed bv the defendants, as ° ° ’ follows : “ For value received, we, jointly and severally, _ , \ -r ^ , promise to pay Barent Sanders and Isaac Ogden, or order, the sum of 90 dollars and 71 cents, with interest, on or before the 15th of September next. Witness our hands this 4th day of December, A. D. 1806.” On which note was. an endorsement, also signed by the de- ... fendants, as follows“ The within obligation is to be delivered to Messrs. Sanders Of Ogden, as a consideraiion for a judgment and execution for 90 dollars and 71 cents, in favour of Sanders Ogden against Salmon Try on, and by said Sanders £? Ogden to be assigned, fully, legally, and effectually, over to the subscribers. Ballston, 4th December, 1806.”
    The defendants moved for a nonsuit, on the ground that, by reason of the endorsement, the note could not be declared on as a promissory note, within the statute. And the court nonsuited the plaintiffs. The plaintiffs tendered a bill of exceptions to the opinion of the court below, on which the writ of error was brought to this court.
    
      The cause was submitted to the court, without argil- , , • ment.
   Per Curiam.

The note was well declared upon, as á promissory note within the statute. It had all the requisites of such a ndte. The endorsement upon the back of it was no part of the note, and the effect of it was only to show the consideration, and to operate as a notice to any person who might purchase the note. If the plaintiffs were bound to have shown, in the first instance, the performance of that consideration, the objection ought to have been raised at the trial. The decision, turned upon another point, and the intendment from the record would be, that the consideration was admitted, aá no objection was raised üpon that account. But if it; had been raised, it could not have been valid. The de* livery of the note was presumptive evidence of the assignment of the judgment, and it stood good,'until'overthrown by proof, on the part of the defendants, to the con* trary. If the assignment was prospective',• and to be thereafter made, the delivery of the note' Was equally so. The note was to be delivered, upon' a judgment to be as-. signed, and the subsequent delivery was presumptive evidence of the subsequent assignment. They Were to be concurrent acts. The decision below was, therefore, upon every view of the case, erroneous, and the judgment must be reversed; and the plaintiffs are at liberty to proceed, if they shall elect so to do, upon á venire de novo, to be awarded from this court.

Judgment reversed.  