Byrd v. Tucker

Lacy, J.,

delivered the opinion of the Court:

A preliminary question has been raised and discussed at the bar, which we will notice before we proceed to determine the main point in controversy. It has been said, in behalf of the defendant in error, that there is no bill of exceptions in the record. It is true, as argued, that he who excepts to the opinion of the Court below, must reserve his points at that time, and the bill of exceptions must state that the transaction occurred during the progress of the trial. The bill needs not be signed while the trial is progressing, but it may be signed after judgment, and during the continuance of the term at which the trial was had. In the present instance, the Judge certifies that the plaintiff in error excepted to the points that were ruled against him upon the trial; and the bill of exceptions sets out the evidence that was offered and rejected by the Court. This clearly shows that the bill of exceptions was properly taken, and constitutes a part of the record.

The cause was tried upon the pleas of nil debet and set-off. The plea of set-off shows two causes of action, the one within the jurisdiction of a justice of the peace, and the other within the jurisdiction of the Circuit Court. The averment upon the small note, within the jurisdiction of a justice, was attempted to be supported by the production of the note. This evidence was withdrawn by the party producing it,"'"without objection; and the averment in regard to the small note should then have been excluded from the plea. The case then went to trial upon the other part of the plea. This part of the plea of set-off státes, that S. S. Sanger assigned, on the 12th day of December, 1840, to the plaintiff in error, a note which he held on the defendant. To this plea the defendant replied, that the note was assigned since the commencement of this suit, and issue taken thereon as to the date of the assignment. Upon the trial,, the plaintiff in error offered the note and the assignment in evidence, which were rejected by the Court. The assignment is in these words:'“Pay to W. J. Byrd, Dec. 12, 1840, Sept. 20, 1840. S. S. Sanger.” The point now to be decided is,.upon whom rested the burden of proof? The defendant in error pleaded affirmative matter negatively, and thereby took upon himself the onus probandi. It lay upon him to show that the note was assigned since the commencement of the suit? Has he done so? Certainly not. He has introduced no evidence upon the point. The production of the note established, prima facie, that the note was assigned prior, and not subsequent, to the commencement of the suit. The true date of the assignment corresponded with the plea of set-off, and the words “ Sept. 20,1840,” were surplusage, and so should have been treated by the Court. Upon the,production of the note, and the assignment, the proof of the plaintiff in error was complete, and conclusive of the issue; the defendant failing to produce any other or further proof contradicting th aprima facie presumption. The judgment of the Circuit Court must therefore be reversed, with costs, the case remanded, and leave given the parties to amend their pleadings, if asked for.