Upon the agreed facts the defendant Sarah P. Porter is clearly liable under St. 1910, c. 576, unless the plaintiff by taking her husband’s notes discharged the debt. The burden of proving payment is upon the defendant.
The case was submitted upon an “agreed statement of facts” to the Superior Court sitting without a jury. The trial judge found that “having regard to the form of the first receipt . . . and to the fact that the effect of payment would have been to provide [deprive] the plaintiff with [of] the security which the statute gave him, the debt has not been paid.”
We are of opinion that the finding is warranted by the agreed facts. While, as argued by the defendants, a negotiable note given by a debtor to his creditor for the amount of a pre-existing simple contract debt is prima facie deemed to be a payment or satisfaction of the debt, still this is a presumption of fact simply and may be controlled by evidence that such was not the intention of the parties. And where the note given is not the obligation of all the parties liable for the debt (Melledge v. Boston Iron Co. 5 Cush. 158, 170), or where the effect of considering the note as payment would be to deprive the creditor of some lien or other collateral security, the presumption reaches in many cases the vanishing point. McLean v. Wiley, 176 Mass. 233, and cases cited. And see Cary Brich Co. v. Wheeler, 210 Mass. 338.
Judgment affirmed.