Godley v. Barnes ( 1861 )

The opinion of the Court was delivered by

Johnstone, J.

A 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)

It 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.

I 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.

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

O’Neall, 0. J., concurred.

Motion refused.

(a) Montague on Set-off, 15, 17, 18, 22, 35; 3 Chitty Plead. 51, 52; 3 Term. Rep. 186; 3 McC. R. 249; 4 Rich. R. 183; 10 Rich. R. 322; 11 Rich. R. 374.