The suit is upon a promissory note not negotiable, made by the defendants on July 13, 1835, for the sum of 0100, payable to the plaintiff in July then next with inter*92est. On February 13, 1836, the plaintiff made a written assignment of it on the back of the note to Isaac Shurtleff; but there does not appear to have been any notice thereof given to the defendants ; and they may avail themselves of any de-fence which would be good, if no such assignment had been made.

The defendants offered to be defaulted for the sum of $65, and contended that they had paid the residue. To prove payment, they introduced the record of a suit in favor of John Turner against the present plaintiff, in which Jonathan Eddy, one of the defendants, was summoned as his trustee. Principal and trustee were both defaulted, and judgment was rendered against them at the October Term of the District Court in this county, in the year 1840, for the sum of $65,32 debt, and $ 17,89 costs. The trustee paid to Turner the amount of the debt thus recovered. He does not appear to have made any disclosure as trustee; and there is no other testimony to show, on what ground he was adjudged to be the trustee of the plaintiff.

Does a legal presumption arise, that he was adjudged trustee and made that payment, because he was jointly with the other defendant indebted to the plaintiff? He may have been adjudged to be otherwise trustee, because he alone was indebted to the plaintiff otherwise than by the note now in suit. Or because the plaintiff had deposited money or goods in his hands. The record, not affording the least evidence, that he was adjudged trustee on account of his being indebted jointly with the other defendant by virtue of this note, is more appropriate to charge him as being solely indebted in some other manner. If it were only equally as appropriate to charge him on account of a separate as a joint indebtedness, and therefore left it wholly uncertain on what account he was charged, the defence must fail; for the burden of proof is upon the defendants to show, that the payment was made on account of this note. The presumption arising from the record is, that he was not charged as trustee of the plaintiff on account of this note. In the case of Jewett v. Bacon, 6 Mass. R. 60, it was said, when a debtor holds a *93joint contract against two or more, and his creditor would avail himself of the benefit of it by this special attachment, he must summon all the parties liable by law to discharge it. The same rule is applied in New Hampshire. Hudson v. Hunt, 5 N. H. R. 538. This rule was so far varied by the case of Parker v. Danforth, 16 Mass. R. 299, as to permit one of several partners residing within the State to be summoned and charged, when the other partners had no residence within the State. Such is the rule also in New Hampshire. Atkins v. Prescott, 10 N. H. R. 120.

ft does not appear that both the makers of this note were not within the jurisdiction, when one of them only was summoned as the trustee of the plaintiff. The just inference would seem to be, that they were. It cannot therefore be presumed, that a judgment was rendered against Eddy as trustee in a case, in which he would not seem to have been legally chargeable, when he might have been legally charged on account of being solely indebted to the plaintiff. The plaintiff will be entitled to judgment for the amount due upon the note.