¶1The testimony of Maynard, the indorser, was offered, not to show that there was a legal defect in the origin *593of the note, which he had warranted good by his indorsement; but to prove the facts stated in the answer, to wit; fhat Maynard was the defendant’s agent, that the contract of the plaintiff was that of a loan between the defendant and himself, and that the plaintiff did not take the note for value, in the ordinary course of business, and as an indorsee without notice. The witness therefore should have been admitted, under the authority of Van Schaack v. Stafford, 12 Pick. 565. Having shown that the plaintiff is not a bona fide holder without notice, which might have been shown by this witness, the case would be taken out of the authority of Churchill v. Suter, 4 Mass. 156, and that class of cases, and left to stand upon the ordinary rule. Fox v. Whitney, 16 Mass. 118. Thayer v. Crossman, 1 Met. 416. Marston v. Brackett, 9 N. H. 348.
¶2 Exceptions sustained.
¶3A new trial was had in the court of common pleas at September term 1856, and resulted in a verdict for the plaintiff.