Perlet, C. J.
It would seem to be a well established rule of practice, that in certain cases the court have a discretion to allow leading questions; and in some jurisdictions it is held that this discretion is unlimited, and that the exercise of it cannot be revised in another tribunal or in a case reserved. Bliss v. Sherman, 47 Me. 248, 253 ; Parsons v. Hough, 38 Me. 137; Black v. The Camden & Amboy R. R., 45 Barbour.
In this State we must regard it as settled that the discretion of the court to allow leading questions is not unlimited; that it can only be exercised in a proper case; and that in order to make a proper case there must be something in the character, position, or feelings of the witness, or in the nature of the facts to be investigated, which makes the leading questions necessary to draw out the truth from the witness., Severance v. Carr, 43 N. H. 65 ; Steer v. Little, 44 N. H. 613, 616.
In the cases which have heretofore been considered in this State, the questions objected to as leading, and the circumstances Avhich showed the ground on which they were allowed, have been stated, so that it could be seen whether there was a proper case for the exercise of the discretion of the court. But in the present case it does not appear what the leading questions were, nor on what grounds they were allowed. It only appears generally that leading questions were permitted in the discretion of the court; and we are called on to say whether, where nothing is shown to the contrary, it will be presumed that there was a proper case for the exercise of this discretion.
[189]*189We think it must be presumed that the discretion of the court was properly exercised unless the case states enough to show to the contrary; that the party, who objects to a question as leading and proposes to have the point further examined, should see that his case states all the facts necessary for the consideration of the question.
When the plaintiff had produced the note described in his declaration, the execution of it being admitted by the rule, his case was made out, and he was entitled to a verdict, unless his prima facie case was overthrown by evidence coming from the defendant. The defendant did not deny that the note was made on a sufficient consideration, and was originally a valid security ; but he undertook to prove that he had paid it, and that was his sole defence. He did not rely on a negative of the plaintiff’s prima facie case, but set up in answer to it the affirmative fact of payment. It is true, he said, I gave you this note, and it was a valid contract, which I was bound to perform, and I will prove that I have performed it by payment; and the only fact tried in the cause was whether after the note was made the defendant paid it. Besides other conflicting evidence on this point there was the contradictory testimony of the parties. On this question of fact, had the plaintiff or the defendant the burden of proof?
The court, in substance, instructed the jury that on the question of payment the burden of proof was on the plaintiff, and not on the defendant; for inasmuch as the only question before the jury was whether the note had been paid, as the defendant alleged, the instructions amounted to neither more nor less than that in the conflict of evidence on the question of payment, the burden of proof was on the plaintiff to show that the note had not been paid. Neither the note nor anything else in the case was before the jury for their consideration, except so far as it was competent evidence on that point. The whole case on the trial consisted of the evidence legally bearing on that fact; and with anything beyond that the jury had nothing to do. They were instructed that, if looking to the note and all other evidence on both sides, the balance was in favor of the plaintiff, he was entitled to the verdict; but if the balance was in favor of the defendant, or the evidence was in a state of equilibrium, the defendant was entitled to the verdict: that the defendant was entitled to a verdict unless upon the whole case it was more probable than otherwise that the plaintiff was entitled to it. But the whole case before the jury consisted of the evidence on the question of payment, and therefore instructing them that the defendant was entitled to the verdict, unless on the whole case it was more probable than otherwise that the plaintiff was entitled to it, is only a circuitous way of saying that the plaintiff had the burden of proof on the question of payment., that being the only question in the cause.
This was not a case where the note being admitted was prima facie evidence of the debt, and evidence was afterwards introduced to show that the note was never due. As the whole defence and the whole trial turned on the question of payment, the jury were not called on to consider, nor were they at liberty to consider, any matter relating to the original validity of the note. No other question was before them in any [190]*190stage of the cause, except the fact whether the note had been paid as the defendant alleged and undertook to prove. The defendant set up the affirmative fact of payment, and relied on that fact alone to defeat the plaintiff’s action; and according to what I have understood to be a familiar rule of practice in this State, the burden of proof was on him to make out the affirmative fact on which he relied, and winch he undertook to prove.
This question I cannot but regard as settled by the practice and upon authority in this State.
Where tire action is assumpsit to recover money due by the contract of the defendant, and the defendant, admitting the validity of the contract, undertakes to prove that he has performed it by payment, the burden of proof on the question of payment must be the same whether the money was due by a promissory note or other simple contract. If the action was to recover money due for goods sold, and the defendant, admitting the sale of the goods and his liability to pay for them, relied for his defence upon the fact of payment, no distinction affecting the present question could be taken between such a case and one where the defence was payment to an action on a promissory note; nor can it for this purpose make any difference whether the payment is alleged to have been made in money or in commodities.
In Buzzell v. Snell, 25 N. H. 474, the action was assumpsit for the price of a sleigh. The general issue was pleaded to the whole declaration, except §7.10, and of that sum a tender was pleaded. Under the general issue the defendant gave evidence of payment in specific articles. The court instructed the jury that on the question of payment the burden of proof was on the defendant to show the fact. To this and other instructions and rulings the defendant excepted. The eminent counsel who argued the case for the defendant, gave up this point on the hearing, and conceded that the instructions of the court upon the question which of the parties had the burden of proof were correct; which most certainly he would not have done if in his long and large experience he had not understood that the law on that point was too clearly against him to encourage discussion; and as the point was yielded by the defendant’s counsel, it was merely adverted to and taken for granted in the opinion of the court. It was conceded by counsel and assumed by the court, that the burden of proof was on the defendant to prove the fact of payment, on which he relied; and the question, though distinctly raised m the case, is treated both by court and counsel as one determined by a rule of practice too well settled to warrant the counsel in denying it, or to call on the court to discuss and eiplain it in their opinion. The exception taken on the trial and reserved in the case was overruled and mdgment rendered on the verdict. The case must therefore be regarded as an authority in point. The head note to the reported case states the decision to have been, that, "If the defendant relies upon payment as a defence, either upon the general issue or a special plea, the burden rests upon him to prove the payment.” The evidence in that case, as in this, was introduced under the general issue, and the head note is not the unwarranted inference of a careless reporter, but a correct statement [191]*191of the precise point raised and decided in the case. In a matter of practice like this the circumstance that the point was conceded by counsel and taken for granted by the court, instead of weakening the authority of the case, makes it stronger than it would have been if the question had been treated as doubtful, and decided after strenuous argument by counsel, and elaborate discussion by the court. I have not been able to distinguish the present case from Buzzell v. Snell, and I feel obliged to regard that one as an authority in point and decisive of this question.
We have several other cases in which the rule is expressly stated, or incidentally recognized, that the party, who, in any stage of a cause, and without regard to the issue under which his evidence is introduced, sets up an affirmative proposition in answer to the case of his adversary, has the burden of proof to maintain the proposition.
In Belknap v. Wendell, 21 N. H. 175, 181, Gilchrist, C. J., in delivering the opinion of the court, says : "Where the affirmative is upon a party ho has the right to open and close ; and this is the case although the burden of proof may shift in- the course of the trial. In a suit upon a written contract the plaintiff produces his evidence, proves the signature of the defendant, and stops. The defendant then alleges payment, want of consideration or other matter of defence; the burden of proof is upon him; and yet the plaintiff opens and closes the argument.” Here the rule is referred to by way of illustration as one entirely familiar in practice, and applied to a case precisely like the present, where payment is set up as a defence in the course of the trial after a prima facie case made out by the plaintiff.
In Perkins v. Perkins, 39 N. H. 163, the question, whether the party, who sets up insanity of the testator to defeat a will, has the burden of proof, is treated as independent of the form of the issue under which the evidence is offered. The same may be said of Pettes v. Bingham, 10 N. H. 514. In that case Parker, C. J., cites from The Attorney General v. Parthener, 3 Bro. 443, the rule that if insanity be proved and a lucid interval is alleged at the time of the execution of the will, the burden of proof attaches to the party alleging such lucid interval, which shows that the burden of proof may shift during the trial as successive points are established in evidence .by the respective parties. In the Judge of Probate v. Stone, 44 N. H. 593, it was held, that, however often the burden of proof may shift-in the course of the trial, the party that has the primary burden of proof has the right to open and close. Emerson v. White, 29 N. H. 482, 492, and Merrill v. Locke, 41 N. H. 486, 491, are to the point that the burden of proof does not depend on the form of the issue, and that under the samo issue it may shift in the progress of the trial.
An examination of the cases bearing on this question, shows clearly, as I think, that in this State it has all along been regarded as a settled general rule of practice in civil actions, that, whenever a party in any stage of the cause, under any form of pleading, sets up an affirmative proposition in answer to his adversary’s case, he has the burden of proof to maintain the affirmative fact on which he relies. This general recognition of the rule in practice, and the direct authority of' Buzzell v. [192]*192Snell, I consider to be decisive of the present question; for in a matter of practice like this, I do not think we are warranted in disturbing what I understand to be the present rule of law in order to introduce a speculative novelty, even if it were supported by plausible general reasons and the authority of decisions in other jurisdictions.
So far, however, as I have been able to learn, the practice elsewhere is in substantial agreement with what I suppose to have been our own; and on this particular point all the authorities that I have seen, are unanimous that where a defendant relies on payment, whether under the general issue or a special plea, the burden of proof is on him.
In Powers v. Russell, 13 Pick. 69, it was held that where the party having the burden of proof gives prima facie evidence of a fact, and the adverse party, instead of introducing proof, which would go to negative the same proposition of fact, proposes to show another and distinct proposition, which avoids the effect of it, then the burden of proof shifts and rests upon the party proposing to show the latter fact. Tourtelot v. Rosebech, 11 Met. 460, 463, is to the same point.
Sperry v. Wilcox, 1 Met. 267, was case for slander, to which the defendant pleaded the general issue, and gave notice that under the general issue he should justify the speaking of the words by proving that they were true ; and it was held that if the jury were satisfied the defendant spoke the words, the burden of proof was on the defendant to establish the fact that they were truc ; and that if the jury doubted as to that fact they should find for the plaintiff. In that case the primary burden of proof was on the plaintiff to prove the speaking of the words said in the declaration ; and when undér the general issue the defendant undertook'to maintain his affirmative proposition that the words were true, the burden of proof shifted and was transferred to him ; and hence it follows that the question on which party the burden of proof rests, does not depend on the form of the issue under which the evidence is offered, but on the nature of the fact to be proved.
Where the defendant proposes to show want of legal consideration for a note he has given, this in Massachusetts would seem to be regarded as a mere negative contradiction of the plaintiff’s prima facie case, and the burden of proof on the question whether the note was originally a valid security, is there held to be on the plaintiff. , But where the defendant undertakes to prove a fact subsequent to the making of the note, like failure of consideration, payment, <fee., the burden of proof is held to be on him to make out the fact which he sets up to defeat the plaintiffs claim on the note. Powers v. Russell, 13 Pick. 69 : Sperry v. Wilcox, 1 Met. 267 ; Delano v. Bartlett, 6 Cush. 369. Whether such a distinction would be admitted here, it is not necessary now to inquire. I do not find it to be recognized out of Massachusetts.
Bassett v. Porter, 10 Cush. 419, was trespass for an arrest and false imprisonment. The defendant specifies his defence to be that he took the plaintiff on a warrant for a school tax, and it was held that the burden of proof was on him to show that the town was regularly divided into school districts. This case of Bassett v. Porter is a direct authority to the point, that if the matter of the defence is such as being plead[193]*193ed specially at common law would thi-ow the burden of proof upon the defendant, the burden of proof will be on him if he sets up the same defence under the general issue. Metcalf, J., says, "the statute which prohibits special pleas and authorizes the giving of all matters under the general issue has not altered the rules of evidence as to the burden of proof on the trial of that issue.”
Cook v. Noble, 4 Ind. 421, was assumpsit by the payee against the maker of two promissory notes. The only plea was the general issue with an agreement opening the whole field of evidence to both parties. The defence was that the consideration of the notes had failed, and the court says, "the weight of evidence on both sides is pretty nearly balanced ; of course, the plaintiff must recover, for the burden of impeaching the notes lies on the defendant.” In that case, as in this, the evidence of the defendant was offered under the general issue, and the primary burden of proof was consequently on the plaintiff; and the court assumed it as a familiar rule of practice that the burden of proving his defence was on the defendant.
Davis v. Bartlett, 12 Ohio (U. S.) 535, was a suit to recover the amount of a promissory note made by the defendant and endorsed by the payee to the plaintiff. The defence set up was that the note was given for a mower and reaper, which the defendant had the right to return if it did not answer; that it did not answer, and was returned to the payee while he was the owner of the note, and before it fell due ; and that the plaintiff took the note afterwards with knowledge of all the facts. Held that it was incumbent on tlie plaintiff to prove the failure of consideration; that thereupon the burden shifted and the plaintiff was bound to show that he took the note for value in the usual course of business; that when this was shown by the plaintiff the case proved by the defendant was thereby overcome, and the plaintiff’s presumptive right to recover restored, and that the burden of proof then shifted to the defendant, to show that the plaintiff had knowledge that the consideration of the note had failed.
It would seem, that, by the law of Alabama, if the defendant swears to payment in certain cases, his testimony is taken to be true, unless he is contradicted by the plaintiff on oath, and if he is, it was held in McLendon v. Hamblin, 34 Ala. 86, that the burden of proof is on the defendant to prove payment by other evidence. In that case it was said by Walker, C. J., that, "if the testimony of the defendant in support of payment is contradicted by the plaintiff asserting that such testimony is untrue, the plea of payment is unsustained unless other evidence is adduced.” So in Bell v. Young, 1 Grant’s Penn. Cases, 175, it was decided that the burden of proving that the note in suit was paid rested on the defendant even where the note had been lost.
In 2 Greenleaf's Ev. sec. 506, the rule is stated to be, that, whether evidence of payment is given under the general issue or a special plea, "the burden of proóf is on the defendant.”
This rule is not peculiar to the common law, but, being founded in natural reason, is recognized in other codes, and applies without regard to the form of the allegations under which the evidence is offered. Part [194]*194Four of Potliier on Obligations is introduced by the following statement of this general rule : "He, who alleges himself to be the creditor of another, is obliged to prove the fact or agreement upon which his claim is founded, when it is contested ; on the other hand, when the obligation is proved, the debtor, who alleges that he has discharged it, is obliged to prove the payment.” Evans, the learned commentator on Potliier, in his note to this passage, says that this principle is "clearly one of those in which every system' of jurisprudence must concur in general, whatever particular rules may be adopted as to the mode and form of the allegation, by which the necessity of such proof is to be determined,” and he adds, "it is sometimes too generally contended that in case of opposition of testimony, the plaintiff, on whom it is incumbent to prove the case, must maintain his right by an absolute preponderance of testimony ; but this is only true so far as it is requisite to establish a presumptive and prima facie case; and -whenever a final and undisputed point is established by either party, it is from that point that the conflict must commence, whether in those cases where the allegations are particular, or in those where the -whole matter is open upon general pleading.” This authority would seem to cover the ivhole ground of the present case and to be precisely in point.
The position is taken, I understand, that the party, who on the pleadings has the right to begin and close the trial, has the burden of proof throughout the cause on all the issues that may be joined, and on all the questions of fact that may arise. This is contrary to the n*unerous authorities which hold that the burden of proof may shift during the trial, and is also inconsistent with the rule that where the defendant pleads specially an affirmative fact in avoidance of the plaintiff’s case, he has the burden of proof to make out the fact which ho pleads. For there are numerous cases where the defendant cannot, by pleading his defence specially, obtain the advantage of beginning tire trial; as, for instance, where he has occasion to file a set-off, or where his case requires him to make different defences to separate causes of action prosecuted in the same .suit. Suppose he was sued on three several promissory notes, one of which he never owed, one of which he had paid, and the third he had settled by an accord. To one of these claims at least he must plead the general issue, which would give the plaintiff the right to begin the trial, though the other matters of defence were pleaded specially. That the question, on which party rests the burden of proving a fact, does not depend on the right of opening and closing the trial, the authorities are unanimous and entirely decisive.
Then, again, it is said that the question, upon which party the burden of proof rests, depends on the form of the issue under which the evidence is offered; that if a defendant pleads the general issue, and under it introduces evidence of an affirmative fact instead of assuming the affirmative by plea on the record, the burden of proof is on the plaintiff to make out in the conflict of evidence the negative of the affirmative fact set up in defence; that in such case the plaintiff is compensated for the disadvantage of being required! to assume the burden of proof, by the right to open and close the trial.
[195]*195This argument would be more forcible if the plaintiff was the party that makes the election whether the defence shall be given under the general issue or under a special plea. It might then be said with some plausibility that the plaintiff had voluntarily assumed the burden of proving the negative of an affirmative fact. But it is the defendant who determines whether it will be for his advantage to plead his defence specially and thereby admit the prima facie case of the plaintiff, or by a general denial put him to make out his whole case in the outset. The liberty of pleading double, and the election to plead a defence specially, or give it under the general issue, have not been introduced for the ease and convenience of the plaintiff, but of the defendant; and when a defendant uses the liberty, with which the law indulges him, of showing his defence under the general issue, instead of pleading it specially, he must be supposed, in consideration of being relieved from the trouble and risk of attempting to state his defence specially, and of the advantage which a general denial gives him of putting the plaintiff to make out his whole case, to have voluntarily waived his right to open and close the trial.
Even if we were at liberty to go beyond the authorities, which to my mind are decisive, and look to the general reason of the thing, I can see no ground for any change in what I understand to be the present rule of the law on this point. The defendant has his election to plead his defence or give it under the general issue. If he sets up an affirmative fact to defeat the plaintiff’s case, he ought in reason to assume the burden of proving the fact, whether he elects to show it by special plea, or finds it more for his interest to prove it under a general denial of the plaintiff’s case. It is not reasonable that he should be permitted to use the indulgence which the law allows him, of showing an affirmative defence under the general issue, to shift the burden of proving it from himself and throw it on the plaintiff.
In answer to the argument that until the plaintiff had made out his whole case affirmatively, he should not be allowed to take anything away from the defendant, it may be sufficient to say that it applies as well where the defendant pleads a single affirmative plea and opens and closes the trial, as where the defence is given under the general issue.
I understand the general rule to be that in close actions the party, who relies on an affirmative fact, has the burden of proof to make it out in evidence; that in the conflict of evidence he must make the affirmative fact more probable than otherwise. There are a few exceptional cases in which the law presumes an affirmative; it is sometimes presumed that a jjublic officer has done an act required by his official duty. In criminal cases, as the law is held in this State, the burden of proof remains on the government throughout the trial, though the defence set up may involve an affirmative fact; because, though the defendant may not establish the fact, which he undertakes to prove, yet if he raise a reasonable doubt upon it, he ought not to be convicted.
My opinion is that the jury should have been instructed that the burden of proof on the question of payment was on the defendant; that the instructions given on that point Avere not correct; and that consequently the verdict must be set aside.