¶1Complaint by the appellee against the appellant on a promissory note, executed by .the appellant to one J. C. Fitzgerald, and by the payee endorsed to John Pit-man, and by the latter endorsed to the plaintiff, for the sym of two hundred dollars, with ten per cent, interest, and attorneys’ fees if suit should be instituted thereon, payable at the First National Bank of Kokomo.
¶2The defendant answered, first, by denial of the execution of the note, under oath; and, second, that the note was obtained by deception and without consideration, and that it was not transferred to the plaintiff in good faith upon a good consideration before maturity.
¶3Replication in denial.
¶4Trial, verdict, and judgment for the plaintiff. Motion by the defendant for a new trial overruled and exception.
¶5The evidence on the trial showed that the plaintiff purchased the note before maturity, for a valuable consideration, and without notice of any objections to its validity. There was sufficient proof of the genuineness of the defendant’s signature to the note, but there was no affirmative proof of its delivery by the defendant to the payee. There was, we think we may say, no proof in the record on that subject either way. It is objected that there could be no recovery without evidence of such delivery.
¶6This objection is not, in our opinion, well taken. The general denial was not filed; hence it was not denied that the payee endorsed the note to Pitman, and that Pitman endorsed it to the plaintiff. Fitzgerald, the payee, then must have had the note in his possession, otherwise he could not *309have endorsed it to Pitman; and that possession raised the pfesumption, prima facie, that it had been delivered to him by the maker. This doctrine is applied even to deeds. Berry v. Anderson, 22 Ind. 36.
¶7It is urged that the court erred in receiving improper evidence. This, however, was not made a ground of the motion for a new trial.
¶8After the argument of the cause, and while the court was reading instructions to the jury, the defendant asked that certain interrogatories be propounded to the jury, to be answered by them in case they found a general verdict for the plaintiff, and this was refused. There was no error in this. In the case of Malady v. McEnary, 30 Ind. 273, this court say: "The court was called upon in the midst of its charge, to consider the interrogatories offered. Such a proceeding is unheard of in practice.”
¶9The interrogatories were offered at an improper time, and the court committed no error in refusing to then stop and consider them. They were not again offered after the court had finished its charge, and we do not think it was the duty of the court to then call upon counsel for them, in order that they might be considered.
¶10The record shows that the defendant offered evidence which was rejected,and this is made aground of the motion for a new trial. No error is pointed out in this respect, in the brief of counsel, and we discover none.
¶11Objection is made to the instructions given by the court. The evidence is not all in the record. A letter written by the defendant to Fitzgerald, the payee of the note, was admitted in evidence, but is not in the record. The clerk, in a note, explains that it is not on file. The bill of exceptions, to be sure, purports to contain all the evidence, but from the bill it conclusively appears that the letter went in evidence, and it is not in the bill of exceptions at all. In such case, we cannot regard the evidence as all being in the record. Ward v. Bateman, 34 Ind. 110.
¶12This letter may have been of the utmost importance. We *310are not apprised of its contents. Now, as the evidence is not all in the record, we cannot say that any of the charges of the court were wrong as applied to the case that may have been .made by the evidence. It has long been' settled that if under any supposable state of the evidence that could have been adduced under the issues, the evidence not being in the record, the ‘instructions could have been correct, it will be presumed that that state did exist. Vide cases cited in note d, 2 G. & H. 200.
¶13The motion, for a new trial was based partly on the refusal of the court to give certain instructions, and on newly-discovered evidence; but neither the instructions asked by the defendant and refused, nor the affidavits in support of the motion, are in the record.
¶14We find no available error in the record; hence the judgment below must be affirmed.
¶15The judgment below is affirmed, with costs and five per cent, damages.