This was a suit upon a promissory note.

The appellant assigns two errors; 1st, The refusal of the Court below to grant a continuance; and 2d, Misdirection of the jury by the Court.

The affidavit for a continuance does not, in our opinion, show sufficient diligence on the part of the defendant. This was the second trial of the case. The witness had testified on the former trial, and was in the city of San Francisco until a few days before the second trial. The defendant relied on his promise to attend, and took no pains to secure his testimony, by deposition or otherwise. It is true, that the affidavit states that he caused a subpoena to be issued, which was not served; but it does not appear whether it was issued before or after the departure of the witness, and the inference, from all the facts and circumstances stated, is, that it was issued after the witness had left the jurisdiction of the Court. The refusal to grant a continuance under these circumstances was not such an abuse of discretion as to call for the interposition of this Court.

Upon the back of the note sued on there was the following endorsement: “ September 25th, 1852. Rec’d the payment of the within sum, and thirty-three dollars interest, by the hands of Mr. Isaac Frank. Mayer Schultz, by H. L. Kohn, Agent." *49 “ Without recourse to me. Maybe Schultz, by H. L. Kohn, Agent.”

The defendant contends that the endorsements were not made at the same time; that the first was a receipt in full as a payment of the note by Frank; that the debt was extinguished by this payment, and could not be revived by the second endorsement, so as to enable Frank, the holder, to maintain an action upon it. It was contended that these facts could be established by the absent witness') and this was" the ground for asking a continuance. On the final, however, there was no evidence offered to substantiate, this defence, and the case went to the jury upon the note and' endorsements, the Court instructing them that, as a matter of law, the plaintiff was entitled to recover. It is urged that this instruction was erroneous, for the reason that it was a matter of fact for the jury to determine whether the endorsements were made at the same time, and whether the payment by Frank was intended as an extinguishment or purchase of the note. The holder of a negotiable note is prima facie the owner thereof for a valuable consideration.

There is no evidence in this case to warrant the presumption that the endorsements were made at different times, or that the plaintiff voluntarily paid the debt of the defendant. If testimony had been introduced tending to establish a legal or moral obligation on the part of the plaintiff to pay the note, it would have been proper for the Court, in view of these circumstances, to have left the jury to determine whether the first endorsement or memorandum upon the note was intended by both parties as a receipt for the payment of the same. In the absence of all ■testimony, however, I think the two endorsements must be taken together as forming one contract of assignment, and that it never was the intention of the plaintiff to pay unconditionally the debt of the defendant.

Judgment affirmed.