¶1When the law casts upon a party the burden of proving a fact, it is to be regarded for the pui’pose of the trial that the fact does not exist, when there is no evidence conducing to prove it. The plaintiff in this case, by the introduction of the note, established a prima-facie right of recovery. If the defendant sought to assail that prima-facie case, upon the ground that one of the payees was absent when his presence and services were needed, and his absence was injurious to the defendant’s interest in his cause, it devolved upon the defendant to show those facts. Erom proof of the absence of one of the payees of the note at a term when the defendant’s cause was not reached, we cannot infer that there was a tendency of evidence to establish that the presence of *689such payee was needful when he was away, or that any injury resulted from his absence. Erom such premises it would be more reasonable to infer, that his presence was not needed, and his absence not injurious. There being no tendency of evidence to establish the fact which the law required the defendant to prove, there was no error in the instruction by the court to the jury, that the fact did not exist. The promise of the defendant, as set forth in his note, was unconditional; and it did not devolve upon the plaintiff to show a compliance on the part of the payees -with their contract. If they were guilty of any breach of the stipulations which were the consideration for the defendant’s promise, it was incumbent upon the defendant to prove it.
¶2Judgment affirmed.