Griffin v. Evans

23 Ga. 438

• Court: Supreme Court of Georgia
• Decided: August 15, 1857
• Status: Published

Opinion

By the Court. —

Lumpkin, J.

delivering the opinion.

The question in the case is, when a negotiable note is pleaded as a set-off, on whom does the burden of proof rest, to show that the defendant was in possession of the paper at the time the action was commenced ?

It is a well settled rule, that every holder of a negotiable note is considered, primafacie, to be a bona fide holder; that is, he is presumed to have taken it before due. Hence, in an action by an indorsee, against the maker of a promissory note, if payment to the original payee is relied on, the onus isupon the defendant to show that the money was paid before the note was transferred. Chitty on Bills, 248; 5 Mass. Rep. 335.

Why should not the same rule prevail in favor of the defendant, under, the plea of a set-off, which is but a cross acción against the .plaintiff? We see no reason to the contrary.

Judgment reversed.