C. Fitch Bissell vs. William B. Morgan, 11 Cush. 198

Dewey, J. The only ruling that seems to be objected to is that as to the burden of proof, upon the question whether the plaintiff was the person to whom the note was originally given, or a subsequent holder. This became material in the course of the trial, as the defendant sought to impeach the consideration of the note, or to show such false representations, or breach of warranty as would defeat a recovery by the original payee. The plaintiff has the general burden of maintaining his right to recover in the action.

He produces a note payable to bearer merely, and thereupon the defendant -shows certain facts, as want of consideration and fraudulent representations in procuring the note, all which may constitute a good defence to the note if held by the original payee until after overdue. The plaintiff seeks to avoid this defence by alleging that he is not the original holder, but a bond fide purchaser of the same before it became due, and so not affected by the equities which might be urged against the original payee. Relying upon this fact as material to his case, he must prove it.

Ordinarily the fact would sufficiently appear by the name of the original payee differing from that' of the plaintiff; but in a case like the present, of a note payable merely to bearer, no presumption of that kind arises, and the plaintiff by some competent evidence must prove the fact that he is a subsequent holder and not the individual to whom the note was originally given. In the opinion of the court, the ruling as to the burden of proof upon this point was correct. Exceptions overruled.