Harvey v. Mason & Dibble

By the Court.

Benning, J.

delivering the opinion.

[1.] The request included many particulars. It was rejected! by the Court below as a whole. It is impossible, therefore, for this Court to tell which that Court considered the offending particular or particulars.

[2.] There is at least one of the particulars which this Court cannot sanction, viz. this: “ and that the onus was upon the defendants to show that they” (the notes) “ had not been sold prior to the service of the summons of garnishment and defendants'' answer thereto.”

The part of the case to which this referred, raised the question between the plaintiff and the defendants, whether the notes had or had not been transferred to the plaintiff before the service of the summons of garnishment. And that was a question of which the plaintiff held the affirmative. He had to say that the notes had been transferred to him before the service of the summons.

And it is a general rule, “ that the point in issue is to be proved by the party who asserts the affirmative.” (1 Ph. Ev. 194.)

And the fact in issue in this case was one which lay peculiarly within the knowledge of the plaintiff. He was the transferee of the notes.

And this also is a reason why the onus of proving the fact should be on him. (Id. 198.) We therefore affirm the decision.