Assumpsit upon a promissory note for 8118,88, dated February 20, 1842, and made payable to Erastus Ramsdell, or order, on demand with interest, arid by the said Erastus indorsed to the plaintiffs, who brought this action as indorsees, alleging that the in-dorsement was made on the day of the date of the note. Plea, the general issue, and trial by the court.

On trial, after the plaintiffs had given in evidence the note, and proved its execution and indorsement, the defendant offered evidence tending to prove, that, in October, or November, 1842, Eras-tus Ramsdell, in a conversation between him and the defendant, admitted that the defendant had, before that time, made him a payment of about eighty dollars on the note in suit, and also offered in evidence a receipt, signed by the said Erastus, dated October 1, 1842, and acknowledging the receipt of $80,50, in part payment of the note. It did not appear that the note at the time of the said conversation, or of the giving of the receipt, was in the possession of the said Erastus.

To the admission of this testimony the plaintiffs objected, and the court rejected the same, and rendered judgment for the plaintiffs for the whole amount of the note and interest, without requiring or having before them any other evidence, as to the time when the note was indorsed, than the note itself, which was indorsed in blank. Exceptions by defendant.

1. The evidence and receipt, offered by the defendant and rejected by the court, showed a payment made, to be applied on the note in suit, and that this payment was made to the original payee of the note.

2. The payment made by the defendant ought to have been deducted from the note, unless the plaintiffs, in some way, proved that the note was indorsed to them while current.

3. After the evidence and receipt offered by the defendant, the burden of proof was cast upon the plaintiffs, to show at what time the note was indorsed to them.

The evidence rejected was not admissible.

I. Because it was mere hearsay. Erastus Ramsdell, the payee, whose declarations were offered, was a competent witness for the defendant and ought to have been called. Chitty on Bills 650 & note. Ib. 651. Clipsam v. O’Brien, 1 Esp. R. 10. Duckham v. Wallis, 5 Esp. R. 251. Hedger v. Horton, 3 Car. & Payne 179. Ross v. Knight, 4 N. H. Rep. 236. Baker v. Briggs, 8 Pick. 127. Whittaker v. Brown, 8 Wend. 490. Bristol v. Dawn at al., 12 Wend. 142. Hurd v. West, 7 Cow. 752. Warner et al. v. Me Gary, 4 Vt. 507. The cases that seem contradictory will be found to be where admissions and declarations have been received as part of the res gestea, showing fraud, or some vice in the original malting of the note; as that it was on a usurious, or gaming consideration, &c. Chitty on Bills 649 — 50 and cases there cited.

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