
    Samuel Wilbour Junior versus Benjamin Turner.
    In assumpsit by one as beaver on a note payable to A or bearer, indorsed by A, it is not necessary for the plaintiff to prove the handwriting of the indorser.
    In assumpsit by the bearer of a note against the maker, the burden is on the defendant to show that a partial payment, not indorsed on the note, was made bafore the transfer.
    Assumpsit by the plaintiff as bearer of a promissory note, dated May 11, 1822, for 5 dollars and 52 cents, payable to S. Godfrey or bearer, in three months from date. Plea, the general issue.
    At the trial in the Court of Common Pleas, before Williams J., the plaintiff produced the note with the name of Godfrey indorsed thereon in blank. The defendant objected to its being admitted in evidence without proof of the handwriting of the supposed indorser; but the objection was overruled.
    The defendant offered evidence tending to prove, that on the 8th of July, 1822, he paid to Godfrey, at Milton, the sum of 3 dollars, which Godfrey promised to indorse on the note on his return home to Easton where the note then was. The judge instructed the jury, that it was not incumbent on the plaintiff to prove that he purchased the note before the payment of the 3 dollars to Godfrey, but that it was necessary for the defendant to satisfy them that this payment was made before the note was transferred, or his defence in this particular would fail him.
    A verdict being found for the plaintiff, the defendant filed his exceptions to the foregoing directions of the judge.
    
      King supported the exceptions.
    
      C. Laihrop, contri,
    
    cited as to the burden of proof, Webster v. Lee, 5 Mass. R. 334 ; Baker v. Wheaton, ibid. 509 ; 
      Hemenway v. Stone, 7 Mass. R. 58 ; Sanford v. Mickles, 4 Johns. R. 224.
   The Coieri overruled the exceptions. As to the alleged payment, they said that if it had appeared on the note to be before the transfer, the defendant might have availed himself of it in defence ; that the burden of proof was on him to show the time of the transfer ; and that if the promisor makes a partial payment without taking care to have it indorsed, and the note is afterwards transferred to an innocent person, the promisor is in fault and ought to be the sufferer ; unless the note shall appear to have been transferred after it was discredited.

Judgment affirmed. 
      
       See Bayley on Bills, (Phil. and Sewall’s 2d ed.) 544, 545, notes; Peabody v. Peters, ante, 1 ; Sargent v. Southgate, ante, 112.
     