Roland v. Fischer

Caton, C. J. This was an action of ejectment. The plaintiff showed a covenant from himself to the defendant for the sale of the premises on a credit, for which he took the defendant’s notes, payable before the action was brought, and that the defendant had gone into and held the possession of the premises under this covenant. Upon this evidence the court found the issue for the plaintiff. Neither party produced the notes, or gave any evidence on the subject of their payment. It is admitted, that if the defendant had paid these notes he was entitled to recover; if he had not, then the plaintiff was entitled to recover; and the only question in the case is, upon which party the burthen of proof rested. We are of opinion that the burthen of proof was thrown on the plaintiff, to show that the defendant was in default. It was more convenient for him to do so than it was for the defendant to prove that he was not in default. He had received the defendant’s notes, and while they were outstanding against the defendant, that was equivalent to payment. If those notes were still unpaid, it was easy for the plaintiff to produce them, for it is the universal practice among business men to retain notes they hold against others, if they have not put them into circulation, while it is by no means universal for men to preserve their own notes which they have paid and taken up. Where an action is brought upon an account for which a note has been given, the plaintiff cannot recover unless he produces the note upon the trial and offers to deliver it up, or shows it has been lost or destroyed, and the reason is, that the law will presume that the note has been paid or put in circulation, if it is not produced. The principle is precisely the same which governs this case, for the natural and legal presumption is the same. We think the plaintiff’s proof was insufficient to entitle him to recover, for which reason the judgment must be reversed, and the cause remanded. Judgment reversed.