Edwards v. Dixon

Trippe, Judge. In the judgment rendered in this case.I propose, as indicated in the head-note, to limit it to the exact case as is made in the record and to the principle involved in said head-note. The suit was brought by the payee of the note. It is an ordinary contract, and there could be nO difficulty in proving the consideration of it. No impracticable rule is set up by the constitution which this plaintiff is required to comply with. No burden is imposed on him greater than what has been or may [335] be done without question by the legislature in many other cases. If an act were passed, requiring that when a defendant files under oath a plea of failure of consideration to a suit on a note, the plaintiff must support his case by proving the consideration, would it be claimed that it was an unconstitutional law, that it impaired the obligation of a contract, that it so broke in upon the remedy of the plaintiff as to violate the paramount law of the land ? So if a similar onus was put upon a plaintiff, where the plea of gaming or of usury, or other illegality, is set up, would such a statute be void ? The rule now is in a claim case, that where the property, levied on is shown to have been in the possession of the defendant in execution after judgment was obtained, the onus is cast on the claimant. If it were declared by statute that when an affidavit is filed by a plaintiff in execution before, levy is made, that such property was in his debtor’s possession after judgment, it should be sufficient to cast the onus, would such an act be unconstitutional? Let it be noted that the provision of the constitution under consideration does not create a defense — does not make anything or act an avoidance of a contract which was not a defense before, which would not have been sufficient to set it aside or avoid it when the constitution was adopted: Chanceley vs. Baily, 37 Georgia, 532; Wallace vs. Cannon, 38 Ibid., 199. Were that matter a new question, res integra, and did I not feel bound by those decisions, as well as several rendered by the supreme court of the United States, my own judgment might be different in this case, but for a totally different reason than the one given in the dissenting opinion. The constitution does not make the filing of the plea, nor the swearing to it, nor both together, a ground for a judgment in defendant’s favor. It simply casts a- certain duty on the plaintiff in such a ease, the sum of which is that he must show a legal and valid consideration for the contract he himself made and on which he has brought suit. He knows what that consideration is; can it be unconstitutional to require him to prove it ? Again, it is not a case of a bearer of á negotia [336] ble instrument suing on a paper which may have been in the hands of numerous parties — parties whom the present bearer may not and cannot know ever held it. Nor is it like the case of the holder of a bank-bill, when it is almost universally impossible for him to know to whom it was issued, or how often it has been issued, or the thousand different uses to which it may have been put. There is overwhelming reason for saying that to require a holder of such a paper to show all that, would be to burden him with the necessity of doing what it is impossible to do — would impose upon him impracticable conditions, and practically deny all right of recovery. For such ■a reason, I concurred in the judgment rendered in Dobbins vs. Sibley, and Branch vs. Baker, decided at the present term. The difference between the two classes of cases, is manifest at once. In one, a clear, substantial remedy is left to the suit- or; in the other, all remedy is practically .taken away. I repeat, that I1 do not intend in this to go outside of the question as it is presented by the facts of this case, and only pronounce that, in my opinion, the said provision of the constitution, article 5, section 17, paragraph .2, casting the burden of proof in certain cases upon the plaintiff, in so far as it applies to ordinary contracts, as in the case of a payee of a promissory note suing the maker; and in so far as it requires the plaintiff in such a case to prove that the consideration of his note was a legal and valid one, is not in violation of that provision of the constitution of the United States which prohibits a state from passing any law impairing the 'obligation of'contracts. Judgment affirmed. McCay, Judge, concurred, but furnished no written opinion.