Promissory Notes—Payment—Burden of Proof—Presumption— Conflicting Evidence—Support of Finding.—In an action upon promissory notes the burden- of proof is upon the defendant to show payment alleged as a defense. The possession of the notes by the plaintiff is presumptive evidence of non-payment which may outweigh positive testimony in reference to payment, and produces a sufficient conflict in the evidence to support a finding of nonpayment in favor of the plaintiff.

Id.—Special Loan to Plaintiff after Maturity of Notes—Repayment—Weight- of Inference of Payment.—A special loan by defendant to the plaintiff after maturity of the notes sued upon, to enable plaintiff to obtain an assignment of a mortgage, and the repayment to defendant of a note given therefor by the plaintiff, without mention of any earlier transactions, and without anything in the deal which related to a settlement of former accounts, can only give rise to an inference of payment of defendant’s notes to the plaintiff, the weight of which was for the judge to determine, and could at most only create a conflict in the evidence, the finding upon which cannot be disturbed.

Id.—Construction of Code—Province of Jury—Judge Sitting as Jury.—Subdivision 2 of section 2061 of the Code of Civil Procedure, providing that jurors are to be instructed “That they are not bound to decide in conformity with the declarations of any number of witnesses, which do not produce conviction in their minds, against a less number or against a presumption or other evidence satisfying their minds,” states a rule which applies to a judge sitting as a jury.

Id.—Evidence—Cross-Examination as to Other Loans—Note Assigned by Defendant to Plaintiff.—The plaintiff had the right to show, if he could, that there were other demands upon which payments testified to' by the defendant might have been applied; and where defendant testified on cross-examination that plaintiff had made no other loans to defendant, it was not error to admit evidence of a note assigned by defendant to the plaintiff, which might be shown to have been security for a loan, though not of itself sufficient to prove it.