Opinion of the Court by
This is an appeal from the judgment of the circuit court of Gallatin county, affirming a judgment of a justice of the peace, rendered against T. Brinldey in favor of R. Going, upon a joint and several note made by T. and W. Brinkley to Going. On the back of the note is an assignment by Going to Thomas Hulett; *367the signature of Going to the assignment is crossed, and from the bill of exceptions containing the evidence, it appears that the defendant below acknowledged, after the judgment of the justice was rendered, that the note was just, though it does not appear that he knew of the assignment.
Eddy, for appellants.
Gatewood, for appellee.
For the appellants it is contended, that Going can not maintain this action in his own name without accounting for the assignment or a retransfer of the note. This position is untenable. The indorsement on the back of the note is in the control of the payee, which he may strike out or not, as he thinks proper, and in this case he has stricken it out. But even if the assignment had remained perfect, the possession of the note by the payee, is,'unless the contrary appears, evidence that he is the bona fide holder and owner of the note, and will enable him to maintain an action in his own name without a reassignment, or receipt from the assignee, and the allegation that he is assignee, may be regarded and rejected as surplus-age. The presumption of law in favor of the appellee’s claim, is supported by the ackowledgment of the appellants, that the note was just, and his promise to pay the money, or suffer judgment to go by default. See Dugan et al. v. United States, 3 Wheat., 172. Lansdale v. Brown, 3 Wash., 404. The judgment is affirmed with costs. (1)
Judgment affirmed,