Godley v. Barnes

¶1*162The opinion of the Court was delivered by

¶2A discount is in the nature of a cross-action, founded upon a right of action existing in the defendant at the time suit is brought against him; and it follows, necessarily, that he is bound to prove, in support of a discount, that he had the right of action which he proposes as a set-off, when he was sued.(a)

¶3It is in the nature of things that the burden should lie on him to prove the affirmative proposition that he held a right of action against the plaintiff when the latter sued him, rather than upon the plaintiff to prove the negative that no such right existed in the -defendant at that juncture of time. The note set up in discount -was not given to the defendant, but to a third person; and the presumption would be that the right remained in him, until proof made to the contrary.

¶4I believe this has been the practice always in this State; and I am fully sure such has been the practice for the last forty years.

¶5It is ordered that the motion be refused, and the appeal dismissed.

¶6Motion refused.