Burford ex rel. of Hazlett v. Fergus

Opinion by Mb. Justice Fell, The case presents but one question, and that relates to the burden of proof. The action was on a note under seal made by the defendant to the order of R. Burford, the legal plaintiff, and by him assigned to the equitable plaintiffs. The defendant, before suit brought, purchased the overdue note of the legal plaintiff to the order of Town Brothers, and at the trial offered it in evidence under the plea of set-off. • The execution and consideration were admitted as to both notes, but it was claimed [314] bjr the equitable plaintiffs that the defendant had notice of the assignment to them of his note to Burford before he purchased the note of Burford to Town Brothers which he sought to use as a set-off. In the answers to the points and in the portion of the charge excepted to, the jury was instructed that the burden of proof was on the defendant to show that he was a bona fide holder of the Town note before suit was brought, but that the burden rested on the plaintiffs to show notice to the defendant of the assignment of his note to them before he acquired the set-off. The single question related to the burden of proof of the notice of assignment. This was a theoretical rather than a practical question, as the testimony was presented in a regular and orderly manner at the trial and the jury was instructed in a clear and well considered charge which covered the points of the case in the order in which they had arisen, and particular directions were given as to the preponderance of evidence which should influence their finding.' The burden of establishing a fact by proof rests upon the party asserting it. It may be shifted by the pleadings, or changed in the course of the trial by the order in which the testimony is presented. When the plaintiffs put the note in evidence, with the assignment to them, they established prima facie a right of recovery against the defendant. When the defendant offered the Town note with proof of his ownership before suit brought, he established a valid set-off. He could have rested there, as he was not bound to show more. He had answered the plaintiffs’ ease fully. The fact of the assignment to them did not affect the right of set-off; proof of notice of it to the defendant before he acquired the claim used as a set-off would have done so. Proof of no notice was not required to establish the right of set-off, but proof of notice was necessary to defeat the right. The recovery sought was in the right of the legal plaintiff, and it would have been defeated iii the first instance by any defence that was good as between the original parties. If the use plaintiffs had a right superior to that of the legal plaintiff which prevented the use of the note as a set-off, it was founded upon the fact of the assignment to them, which they had proved, and upon the fact of notice to the defendant, which they had [315] not proved. A superior equity in them could arise only upon proof of the two facts necessary to establish it—the assignment and notice, and the onus probandi as to both rested with them. In the case of Pennell v. Grubb, 13 Pa. 551, relied on by the appellant, the question of the burden of proof of the time of the-acquisition of a cross demand by the garnishee against the defendant arose between the plaintiff in the attachment execution and the garnishee, and was held to be with the latter. The case is authority for nothing else. The service of the attachment was notice to the garnishee of the interest and equity of the plaintiff and fixed the rights of the parties as of that date, as the service of the summons did here, and the garnishee could defend on no cause of action at that time incomplete. The burden of showing that he had, at impetration of the writ, an independent cause of action, rested upon the garnishee in that case as it did upon the defendant in this. The judgment is affirmed.