Woods, J.
It appears that the note in question passed from the payees to John Stickney who paid value for it, and was presumptively the holder of it in the ordinary course of business. The burden was upon the defendant to show that the transaction by which John became the holder was a payment for the defendant’s benefit. T© prove that fact the court admitted the declarations of John, made after the action had been commenced, and of course after the note had passed from his possession. There does not appear to be any principle upon which such evidence could have been admitted. John Stickney might have been made a witness by the defendant.
The verdict must Be set aside and a
New trial granted.