The substance of the issue between the parties was, whether the plaintiff had, at the date of her writ, an actionable contract against the defendants in the form of a promissory note. For the purpose of maintaining the issue on her part, she produced and proved the note, and thus made out a prima facie case, which would have entitled her to a verdict had the defendants offered no evidence. To avoid the effect of the prima facie case so made, it was, therefore, incumbent on the defendants to offer some evidence in rebuttal; but it does not follow that the burden of proof was thereby shifted. On the contrary, we think it remained on the plaintiff throughout the trial. In every aspect of the cause, the substantive fact to be proved by her remained the same. She affirmed the validity of the contract: the defendants denied it. That was the vital fact in issue at all stages of the trial, and to it the evidence on both sides was directed, affirmatively or negatively; and as the plaintiff affirmed that the contract was a legal and subsisting liability when this alleged breach occurred and as he who affirms must prove, she was bound to sustain her affirmation by proof satisfactory to the jury. No form of pleading could effect an actual change of the issue thus made up, nor shift the burden of proof upon it, unless by force of a legal presumption. And so, while the proof of the extension of the time of payment alleged in the brief statement necessarily commenced on the part of the defendants after the production and proof of the note, it was not because the burden of proof had shifted, but because the plaintiff had offered proof sufficient to establish the validity of the contract and its breach, unless it was rebutted by proof of equal or greater weight. This was what the defendants did; but in so doing they did not assume the burden of proof in any just sense, for, to rebut and overcome the prima facie case made by the plaintiff, it was not required of them to produce a preponderating weight of evidence, but only enough to balance the scales, because in that event the case would then stand as if no evidence had been given on either side, and consequently the burden resting on the plaintiff at the outset would remain unchanged.
The refusal to give the instruction asked for was, therefore, in our view, correct; and if this be so, the exception to the charge becomes invalid. See, generally, Kendall v. Brownson, 47 N.H. 196-205, dissenting opinion of Doe, J.; Roberts v. Crawford, 54 N.H. 533, 534; Delano v. Bartlett, 6 Cush. 367, and cases cited; Burnham v. Allen, 1 Gray 496, 500, 501; Central Bridge v. Butler, 2 Gray 132, per Bigelow, J.; Ross v. Gerrish, 8 Allen 147; Nichols v. Munsel, 115 Mass. 567, 568; Steph. Dig. Ev., art. 95, note 5.
Exceptions overruled.
STANLEY, J., did not sit: the others concurred. *Page 575