#### C. V. SWAN, Administrator of DAVID K. O’NEAL, v. V. V. CARAWAN et al.

(Filed 24 March, 1915.)

1. Bills and Notes — Execution—Payment—Trials—Burden of Proof.

Where the plaintiff proves the execution by the defendant of a note, the subject of the action, he is entitled to recover thereon unless payment is shown by the defendant, the burden of showing payment resting on the latter.

2. Courts — Expression of Opinion — Interest of Witness — Trials.

In proceedings by an administrator to sell lands of deceased to make assets°to pay debts, the execution of the note was testified to by the plaintiff, and a witness for the defendant testified that the note had been paid and that he had a mortgage on the land in question. Held,, it was error for the court to charge the jury that the defendant’s witness was not interested in the result of the action, such being an expression of his opinion upon the weight of the evidence prohibited by statute, which was exclusively for the determination of the jury.

Appeal by plaintiff from Peebles, J., at October Term, 1914, of Pam-lico.

Proceeding to sell land for assets, beard in tbe Superior Court upion appeal from tbe clerk.

Tbe only issue submitted to tbe jury was as to tbe indebtedness of tbe intestate.

Tbe plaintiff introduced a note and a witness wbo testified tbat be saw tbe deceased execute it.

Tbe defendant relied upon tbe plea of payment, and introduced a witness, Mr. "Watson, wbo testified tbat be saw tbe deceased pay tbe indebtedness. On cross-examination tbis witness, Watson, testified tbat be did not consider tbat be owned tbe land yet wbicb tbe plaintiff was seeking to sell, but tbat be held a mortgage deed on tbe land.

His Honor charged tbe jury as follows: “Tbe plaintiff swears tbat Mr. O’Neal signed tbe note. There was no objection to bis testimony. If there was, I would have ruled it out, as be whs interested in tbe result of tbe suit. There was no objection; therefore, it is your duty to consider it; but when you consider it, remember tbat be is interested in tbe result of tbis suit, and ascertain tbe best you can what effect bis interest would have upon tbe truthfulness of bis testimony; then give to bis testimony tbat weight and effect under all tbe circumstances you think it is entitled to. It does not appear tbat Watson is an interested witness, and tbe whole matter depends upon whether or not you believe Watson, wbo says tbat tbe note was paid, or tbe plaintiff, wbo says tbat it has never been paid. Tbe burden is upon tbe plaintiff to satisfy you by tbe greater weight of tbe evidence tbat tbe note was never paid, and tbat something is due, and what amount is due.”

*473Tbe plaintiff excepted, to tbat part of the charge stating that it did not appear that Watson was an interested witness, and to that part that the burden was upon the plaintiff to satisfy the jury that the note was never paid.

There was a verdict for the defendant, and from the judgment thereon the plaintiff appealed.

Z. V. Rawls for plaintiff.

No counsel for defendant.

AlleN, J.

"When the plaintiff proved the-execution of the note by the intestate, he was entitled to have the issue of indebtedness answered in hfs favor unless the defendant established his plea of payment, and the burden of proof upon this plea was on the defendant. Guano Co. v. Marks, 135 N. C., 59.

It was therefore error to charge the jury that the burden was on the plaintiff to prove that the note had not been paid.

The witness, Watson, upon whom the defendant relied in support of his plea, admitted on cross-examination that he held a mortgage on the land which the plaintiff was seeking to sell, and it was for the jury and not for the judge to say whether this fact would affect his testimony, and the statement of his Honor that it did not appear that this witness was interested was an expression of opinion upon the weight of evidence which the law does not permit.

There must be a

New trial.