Greer as Ad’r. et al. v. George as Ad’x.
The note sued upon is pHmafade evidence of consideration: and the affirmative is upon the party impeaching it for want of consideration.
The consideration of a note may he inquired into in a suit before a Justice without a special plea.
The filing of such plea does not shift the mms from the defendant to the plaintiff
Writ of Error to Pulaski Circuit Court.
In November, 1845-, Mary George, as administratrix of Martin George, deceased, sued Eucled L. Johnson, before a Justice of the Peace of Pulaski county, on a promissory note for sixty dollars, made by Johnson to Martin George, March 25, 1843, and due at two months.
Johnson filed a formal plea before the Justice as follows:
*132“And the said defendant, by attorney, comes and defends the Wrong and injury when, &c., and says that the said plaintiff ought not to have or maintain her aforesaid action against him, because he says that the said promissory note was given and executed without, any consideration whatever, and of this he puts himself upon the country, &Ci” The plea was verified by die affidavit of Johnson.
The-Justice gave judgment against Johnson, and he appealed to the Circuit Court of Pulaski county, giving Joseph Fenno as security in the appeal.
At the appeal term, the death of Johnson was suggested, and David B. Greer, his administrator, made party.
At the November term, 1846, the cause was submitted to the court, sitting as a jury, and the court found for appellee, and rendered judgment against Greer as administrator, and Fenno, the security in the appeal, for the amount of the note, <fcc.
Pending the trial, the counsel of Greer took a bill of exceptions, from which it appears:
“On the trial, the appellee, to sustain her action, offered and read in evidence the note sued on, after having proven the signature thereto to be the proper hand-writing of Johnson. To the reading of which, as evidence of the demand of said appellee, the counsel of Greer objected, oil the ground that the plea of Johnson of want of consideration, sworn to and filed before the Justice, put in issue the consideration of said note, and placed the burden of proof upon ap-pellee; but the court permitted said note to be read as evidence of the appellee’s demand, deciding that said plea, sworn' to, did not shift the burden of proof from appellant, but that he was bound to prove his plea notwithstanding; to which decision the counsel of Greer excepted.”
Greer and Fenno brought error.
Hempstead and Bertrand, for appellants.
This was an action on a promissory note, for sixty dollars, to which the obligor-pleaded that it was made “without any consideration whatever,” and verified the plea. Rev. Stat. sec. 75, p. 629, sec. 89, page 504.-
This general averment is sufficient — the plea good and the onus probandi, necessarily rests upon the obligee. The production of the *133note proves nothing; and to require any proof from the obligor, as to a consideration, would be not merely absurd, but would effectually deprive the defendant of a defence which the law allows him to interpose, since it is impossible to establish a negative. It was, therefore, the bounden duty of the obligee to prove the particular consideration upon which this contract was founded. Where the de-fence is based upon a failure of consideration, the special facts and circumstances must be stated, because the effect of that plea is to admit that there was once a consideration. But in a defence like the present, which is a' positive denial that there ever was any consideration, the rule is different. The former is affirmative matter to be averred and proved by the defendant, while the latter is a traverse or denial which necessarily casts the burden of proof upon the opposite party. These distinctions are expressly recognized in the case of Dickson v. Burke, l Eng. R. 412, which is decisive of the present > question, and on the authority of that case we ask for the reversal of this judgment. Ruddv. Hanna, 4 Monroe 531. Ralston v. Bul-lit, 3 Bibb 261.
Cummins, contra:
Contended that the plea of Johnson filed before the Justice, was affirmative, and the burthen of proof to show want of consideration was upon him. On this point, he cited Gage v. Melton, 1 Ark. R. 224. Rankin v. Badgett, 5 Arle. R. 345, Cross Sj' Bizzell v. Bank of the State, ib. 531. 2 Stark. Ev. 279. He argued that inasmuch as no formal pleading was necessary before the Justice, and the Statute permitted defendant to offer parol proof to impeach the consideration of the note, he could not shift the bur-then of proof upon the plaintiff by putting in a formal plea, <fcc., citing Rev. Stat. chap. 87, s. 89.