Upon the application for a rehearing,
Mr. Justice Wheeler1delivered the following as the opinion of the court:
Did I entertain the opinion that the petition must upon its. face show that the right of action was not banned at the time of instituting the suit, I should be unable to concur in. the judgment of the court in this case. But being of a different opinion, I can see no sufficient reason for reversing the judgment and remanding the cause.
I do not think that we are authorized to notice, for any purpose whatever, any record not embraced and certified with the transcript. From the transcript before us, it does not. appear whether the plaintiff’s right of action was or was not barred' when this suit was commenced. It only appears that the. present is the continuation of a former suit; or, at least, that the date of the filing of this petition was not the commencement of this suit, but subsequent thereto. ^Regarding, as I do, the defense afforded by the statute of limitations as a. defense which it is incumbent on the defendant to make out. by averment and proof, when not otherwise apparent, I am constrained to conclude that it cannot avail him in the present instance. The defendant pleaded the statute; the onus fro-bandi rested on him. It was incumbent on him, and not on the plaintiff, to show when the suit was commenced, and that it was, in truth, after the statute had interposed an effectual bar to the plaintiff’s right of action. Upon this point the argument for a rehearing seems to me to proceed upon an erroneous-supposition as to the party upon whom rested the burthen of proof. If in the record of the former proceeding in this case there was anything favorable to the defendant below, he was at liberty to have availed himself of it, and certainly it was incumbent on him to make out his defense before the court and jury.
*397But it insisted that the plaintiff did not make out his cause by evidence legal and sufficient to support the verdict. I confess my inability very clearly to see upou what evidence the jury did arrive at the exact result which constitutes their verdict. But I cannot undertake to say that they found without or against evidence. I can only say that, to my mind, the evidence is unsatisfactory. Since, however, it has been sufficient tp satisfy two juries, and especially since the judge who presided at the trial with means of forming a correct judgment, very superior to those which we possess, was satisfied with the verdict, I cannot undertake to disturb it.
But the judgment heretofore rendered in this case should not have been an affirmance of the former judgment; since that judgment included interest, and was in so far erroneous. There having been no remittitur, or offer to remit, as appears of record in the court below, but a remittitur having now been first entered in this court, the judgment ought to be reversed, and such judgment now here rendered as the court below ought to have rendered.
Judgment accordingly.