The burden of proof was upon the defendant to show the due execution of the agreement set up in the answer. 1 Greenl. Evid., ss. 74-81. The case was not within the rule of court relating to the signature of instruments declared on. Benedict v. Swain, 43 N.H. 33. It was not a cause in equity heard on bill and answer, where the allegations of the answer must be taken to be true. Rogers v. Mitchell, 41 N.H. 154. Nor was the burden of proof changed by the fact that the plaintiff claimed and was allowed the right to open and close. Although the right to open and close may be determined by the burden of proof (Judge of Probate v. Stone, 44 N.H. 593), and has sometimes been allowed on condition of assuming it (Schoff v. Laithe,58 N.H. 503), the exercise of the right to open and close is not necessarily an assumption of the burden of proof. The holding of the referee, that he must find that the plaintiff executed the agreement set forth in the defendant's answer, in the absence of any evidence to the contrary, was erroneous.
Report recommitted.
STANLEY, J., did not sit: the others concurred.