We had no intention in disposing of this case to set aside the well-known rule that the burden of proof is upon the party who has the affirmative side of the issues. All that we decided, or intended to decide, upon the matter discussed on the rehearing, was that the trial court committed no material error under the facts disclosed in the record in refusing to instruct the jury concerning the burden of proof as prayed for. We recognized merely the rule stated in Atlas Bank v. Doyle, 9 R. I. 76, cited in the brief of plaintiff in error.
“Tf the defendant, not disputing the original consideration [of negotiable paper in the hands of a pledgee], takes some new ground of defense — for example, payment, fail*160ure of consideration, and the like — then the burden is on him to prove this matter of avoidance. Delano v. Bartlett, [6 Cush. 366]; 3 Phil, (side page), 161.”
The motion for rehearing will be overruled.