BROWNING, PRESIDENT:
Plaintiff, J. A. J. Lester, Administrator of the estate of Josh West, deceased, instituted this motion [167]*167for judgement proceeding in the Circuit Court of Wyoming County, on September 24, 1951, to recover $1,928.99, principal and interest, allegedly due his decedent from Pat J. Flanagan, defendant, by virtue of a promissory note in the amount of $1,700.00, dated June 1, 1949, payable sis months after date. Defendant filed a plea of “Payment and Release”, alleging the execution of a release of such obligation by the decedent on May —, 1950, to which plaintiff filed a replication denying the “purported written release” was the act and deed of the decedent.
At the beginning of the trial, after the jury had been sworn, but prior to the introduction of any evidence, the court admonished the jury: “* * * The only question you have to determine in this case is whether the signature on the release is the signature of Josh West. That is your only function, determine the signature of Josh West. That has been agreed to by counsel on both sides. All you have to consider is whether or not that is the signature of Josh West or not.” The plaintiff then introduced the note in evidence, stating that it was then due and unpaid. The defendant, in his behalf, testified that the note had been paid and introduced in evidence a release, bearing the signature “Josh West” and witnessed by L. D. Wade. Wade testified that he knew Josh West and had witnessed his signature on the release in question. Mr. Billig, Cashier of the Castle Rock Bank in Pineville, in behalf of the defendant testified that the signature “Josh West” on the release was written by the same person who wrote the signature “J. W. West” on Defendant’s Exhibit No. 4, known to be signed by plaintiff’s decedent. In rebuttal, plaintiff introduced the testimony of P. C. Edwards, President of the Bank of Iaeger, where plaintiff’s decedent maintained his account, who testified, in response to a question as to whether the same person had signed both the release and Defendant’s Exhibit No. 4, “If I had that signature on file, I wouldn’t pay on this one”. Then, in answer to the question: “Would you [168]*168say that Josh West did not sign that on number one?”, replied: “No, I wouldn’t say that. It is not exactly the same signature that we have on some checks.”
The jury returned a verdict in the amount of $2,133.50, and judgment was entered thereon, to which this Court granted a writ of error and supersedeas on July 3, 1958.
The plaintiff has filed two preliminary motions, one, to dismiss the writ of error and supersedeas on the ground that the transcript of evidence was not signed and certified by the trial court within the proper time, and, two, to exclude from the record a copy of a letter from defendant to the trial court, dated May 12, 1954, and a copy of an affidavit of Morris West on the ground that such were not a part of the record in the trial court. In regard to the motion to dismiss, defendant obtained an extension of time until November 16, 1957, within which to tender, and have signed and certified, the transcript of evidence as “Defendant’s Bill of Exceptions No. 1.” The court’s order shows that such was done on November 15, 1957, though such order was not entered in the Law Order Book until November 18, 1957. For the reasons stated in Ketterman v. Dry Fork R. R. Co., 48 W. Va. 606, 37 S. E. 683, this motion is overruled. In regard to the second motion, the letter is in the nature of a memorandum of argument and purports to be in addition to a brief to be filed by defendant’s counsel in support of defendant’s motion to set aside the verdict and award a new trial. The affidavit of Morris West, taken on March 23, 1954, in general terms supports the position of the defendant, and defendant attempts to rely upon it as after-discovered evidence. However, there is no showing that it was ever properly made a part of the record in the case, or that any foundation has been laid upon which it might be treated as after-discovered evidence. Therefore, the affidavit will not be considered on this writ of error.
[169]*169Eleven assignments of error are made in this Court, only two of which need to be discussed in this opinion. One, that the verdict is contrary to law and unsupported by the evidence, and, two, the refusal of the trial court to give Defendant’s Instruction No. 2, which reads as follows: ‘ ‘ The Court instructs the jury that the burden is on the plaintiff to prove his case by a preponderance of the evidence; and if you find that the plaintiff has not proved his case by a preponderance of the evidence your verdict should be for the defendant.”
These two assignments of error are not unrelated. The term “burden of proof” has two distinct meanings, as has many times been held by this and other courts, and they should never be confused. IJpon a plea by the defendant of not guilty, non assumpsit, nil debet, or any other plea that raises the general issue, the obligation is upon the plaintiff throughout the trial to establish by a preponderance of the evidence in a civil case, and beyond a reasonable doubt in a criminal case, proof of his or its allegation in his or its pleading, warrant, or indictment. Upon such a plea by the defendant, the burden of proof never shifts. However, the term “burden of proof”, particularly in civil cases, may denote the obligation devolving upon the defendant, and perhaps passing from one party to the other as the case progresses to meet a prima facie case made by the opposing party. The latter meaning of the term is perhaps more accurately described as the necessity of going forward with the evidence. 31 C.J.S., Evidence, § 103; 20 Am. Jur., Evidence, § 131; 7 M.J., Evidence, § 29; 1 Jones on Evidence, Fifth Edition, §§ 204, 205.
In this jurisdiction, when a defendant enters a plea of payment, the burden is upon him to prove payment by a preponderance of the evidence. Saunders v. Huffman, 119 W. Va. 31, 192 S. E. 297; McDonald v. Stewart, 110 W. Va. 280, 158 S. E. 177; Satterelli et al. v. Cropper, 109 W. Va. 430, 155 S. E. 312; Wood-[170]*170yard v. Sayre, 90 W. Va. 547, 111 S. E. 313; Linn v. Collins, 77 W. Va. 592, 87 S. E. 934, Ann. Cas. 1918 C, 86; Dodrills’ Exrs. etc. v. Gregory’s Admr., 60 W. Va. 118, 53 S. E. 922; Sammons & Piercy’s Exrs. v. Hawvers, 25 W. Va. 678, 21 R.C.L. 119; Rand & Minsker v. Hale, 3 W. Va. 495. It is succinctly stated in the early decision of this Court of Rand & Minsker v. Hale, 3 W. Va. 495, by the 1st Syllabus Point: “A plea of payment, in an action on a bill of exchange, confesses the cause of action as set forth in the declaration.” In the opinion, Judge Brown uses such language as this, quoting from Moore v. Fenwick, Gilmer, 214: “The plea of payment is an affirmative plea and the defendant takes the onus probandi on himself, and has the right to introduce his evidence and to open and conclude the argument. * * * ; a plea by a party in court confessing and avoiding cannot have a less effect as to the admission of the debt originally than a judgment by default.” In that case, the defendant demurred to the declaration and pleaded payment.
Satterelli et al. v. Cropper, 109 W. Va. 430, 155 S. E. 312, was in this Court to review a judgment for the plaintiff upon a notice of motion for judgment proceeding on an account for labor performed and materials furnished. To the notice of motion for judgment, the defendant pleaded only the general issue.
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BROWNING, PRESIDENT:
Plaintiff, J. A. J. Lester, Administrator of the estate of Josh West, deceased, instituted this motion [167]*167for judgement proceeding in the Circuit Court of Wyoming County, on September 24, 1951, to recover $1,928.99, principal and interest, allegedly due his decedent from Pat J. Flanagan, defendant, by virtue of a promissory note in the amount of $1,700.00, dated June 1, 1949, payable sis months after date. Defendant filed a plea of “Payment and Release”, alleging the execution of a release of such obligation by the decedent on May —, 1950, to which plaintiff filed a replication denying the “purported written release” was the act and deed of the decedent.
At the beginning of the trial, after the jury had been sworn, but prior to the introduction of any evidence, the court admonished the jury: “* * * The only question you have to determine in this case is whether the signature on the release is the signature of Josh West. That is your only function, determine the signature of Josh West. That has been agreed to by counsel on both sides. All you have to consider is whether or not that is the signature of Josh West or not.” The plaintiff then introduced the note in evidence, stating that it was then due and unpaid. The defendant, in his behalf, testified that the note had been paid and introduced in evidence a release, bearing the signature “Josh West” and witnessed by L. D. Wade. Wade testified that he knew Josh West and had witnessed his signature on the release in question. Mr. Billig, Cashier of the Castle Rock Bank in Pineville, in behalf of the defendant testified that the signature “Josh West” on the release was written by the same person who wrote the signature “J. W. West” on Defendant’s Exhibit No. 4, known to be signed by plaintiff’s decedent. In rebuttal, plaintiff introduced the testimony of P. C. Edwards, President of the Bank of Iaeger, where plaintiff’s decedent maintained his account, who testified, in response to a question as to whether the same person had signed both the release and Defendant’s Exhibit No. 4, “If I had that signature on file, I wouldn’t pay on this one”. Then, in answer to the question: “Would you [168]*168say that Josh West did not sign that on number one?”, replied: “No, I wouldn’t say that. It is not exactly the same signature that we have on some checks.”
The jury returned a verdict in the amount of $2,133.50, and judgment was entered thereon, to which this Court granted a writ of error and supersedeas on July 3, 1958.
The plaintiff has filed two preliminary motions, one, to dismiss the writ of error and supersedeas on the ground that the transcript of evidence was not signed and certified by the trial court within the proper time, and, two, to exclude from the record a copy of a letter from defendant to the trial court, dated May 12, 1954, and a copy of an affidavit of Morris West on the ground that such were not a part of the record in the trial court. In regard to the motion to dismiss, defendant obtained an extension of time until November 16, 1957, within which to tender, and have signed and certified, the transcript of evidence as “Defendant’s Bill of Exceptions No. 1.” The court’s order shows that such was done on November 15, 1957, though such order was not entered in the Law Order Book until November 18, 1957. For the reasons stated in Ketterman v. Dry Fork R. R. Co., 48 W. Va. 606, 37 S. E. 683, this motion is overruled. In regard to the second motion, the letter is in the nature of a memorandum of argument and purports to be in addition to a brief to be filed by defendant’s counsel in support of defendant’s motion to set aside the verdict and award a new trial. The affidavit of Morris West, taken on March 23, 1954, in general terms supports the position of the defendant, and defendant attempts to rely upon it as after-discovered evidence. However, there is no showing that it was ever properly made a part of the record in the case, or that any foundation has been laid upon which it might be treated as after-discovered evidence. Therefore, the affidavit will not be considered on this writ of error.
[169]*169Eleven assignments of error are made in this Court, only two of which need to be discussed in this opinion. One, that the verdict is contrary to law and unsupported by the evidence, and, two, the refusal of the trial court to give Defendant’s Instruction No. 2, which reads as follows: ‘ ‘ The Court instructs the jury that the burden is on the plaintiff to prove his case by a preponderance of the evidence; and if you find that the plaintiff has not proved his case by a preponderance of the evidence your verdict should be for the defendant.”
These two assignments of error are not unrelated. The term “burden of proof” has two distinct meanings, as has many times been held by this and other courts, and they should never be confused. IJpon a plea by the defendant of not guilty, non assumpsit, nil debet, or any other plea that raises the general issue, the obligation is upon the plaintiff throughout the trial to establish by a preponderance of the evidence in a civil case, and beyond a reasonable doubt in a criminal case, proof of his or its allegation in his or its pleading, warrant, or indictment. Upon such a plea by the defendant, the burden of proof never shifts. However, the term “burden of proof”, particularly in civil cases, may denote the obligation devolving upon the defendant, and perhaps passing from one party to the other as the case progresses to meet a prima facie case made by the opposing party. The latter meaning of the term is perhaps more accurately described as the necessity of going forward with the evidence. 31 C.J.S., Evidence, § 103; 20 Am. Jur., Evidence, § 131; 7 M.J., Evidence, § 29; 1 Jones on Evidence, Fifth Edition, §§ 204, 205.
In this jurisdiction, when a defendant enters a plea of payment, the burden is upon him to prove payment by a preponderance of the evidence. Saunders v. Huffman, 119 W. Va. 31, 192 S. E. 297; McDonald v. Stewart, 110 W. Va. 280, 158 S. E. 177; Satterelli et al. v. Cropper, 109 W. Va. 430, 155 S. E. 312; Wood-[170]*170yard v. Sayre, 90 W. Va. 547, 111 S. E. 313; Linn v. Collins, 77 W. Va. 592, 87 S. E. 934, Ann. Cas. 1918 C, 86; Dodrills’ Exrs. etc. v. Gregory’s Admr., 60 W. Va. 118, 53 S. E. 922; Sammons & Piercy’s Exrs. v. Hawvers, 25 W. Va. 678, 21 R.C.L. 119; Rand & Minsker v. Hale, 3 W. Va. 495. It is succinctly stated in the early decision of this Court of Rand & Minsker v. Hale, 3 W. Va. 495, by the 1st Syllabus Point: “A plea of payment, in an action on a bill of exchange, confesses the cause of action as set forth in the declaration.” In the opinion, Judge Brown uses such language as this, quoting from Moore v. Fenwick, Gilmer, 214: “The plea of payment is an affirmative plea and the defendant takes the onus probandi on himself, and has the right to introduce his evidence and to open and conclude the argument. * * * ; a plea by a party in court confessing and avoiding cannot have a less effect as to the admission of the debt originally than a judgment by default.” In that case, the defendant demurred to the declaration and pleaded payment.
Satterelli et al. v. Cropper, 109 W. Va. 430, 155 S. E. 312, was in this Court to review a judgment for the plaintiff upon a notice of motion for judgment proceeding on an account for labor performed and materials furnished. To the notice of motion for judgment, the defendant pleaded only the general issue. By stipulation of the parties previous to the introduction of evidence, and thereafter, it was admitted that the original debt claimed by plaintiffs was correct, and the only issue for jury determination was whether the defendant had paid the balance of the indebtedness amounting to the sum of one thousand dollars. The trial court refused an instruction offered by the defendant which is substantially in the language of Defendant’s Instruction No. 2 in this case. It reads: ‘ ‘ The Court instructs the jury that unless the plaintiff has proven the matters set up in the motion for judgment by a preponderance of the evidence, then they shall find for the defendant.” This Court, in the [171]*171opinion, noting that there was no plea of payment, bnt only a plea of the general issue, held that it was prejudicial error to refuse the instruction tendered by the defendant. However, the Court was careful to point out that if there had been a plea of payment “the burden of proving such payment” would have been upon the defendant, and it would not have been error to refuse the instruction. After stating the rule as to burden of proof substantially, as heretofore stated in this opinion, and noting that the defendant not only had introduced her receipt of payment, but “fortified her position by oral testimony”, the Court used this language which is pertinent to the assignment of error that the verdict in the instant case is contrary to the clear preponderance of the evidence if there be a conflict upon the validity of the release by the decedent of the obligation of the note upon which the action is based: “* * * This situation placed upon plaintiffs the necessity of rebuttal. ‘ There is not, however, any rule in respect to receipts different from that applicable to any other prima facie evidence. To destroy its effect it must be overbalanced by other evidence laid before the jury, which is to judge whether there is such a preponderance. No rule can be laid down as to either the Mnd or quantity of evidence which ought to outweigh the receipt. * * *. "Where a receipt is properly introduced in evidence, the burden of proof to contradict or explain such receipt rests upon the party disputing it. * * *. "Where the evidence supporting and that impeaching a receipt are balanced, the receipt must have its prima facie effect.’ Am. & Eng. Ency. Law (2nd Ed.), Vol. 23, page 986.” A short time after this Court decided the Satterelli case, Mr. Leo Carlin, a former professor in the Law School of West Virginia University, and perhaps the greatest authority in this State on common law pleading, wrote an article entitled “The Burden of Proving Payment” which appears in 37 West Virginia Law Quarterly 282. Mr. Carlin was inclined to accept the view of the dissenting Judge that the burden of proving payment always rests on the [172]*172defendant regardless of the nature of the plea. In discussing the function of the plea of payment, he said: “* * * It really functions as a common, or specific, traverse, rather than as a plea in confession and avoidance, and in this respect it is a misnomer to call it a special plea. * * *” It was not error for the trial court to refuse Instruction No. 2 offered by the defendant.
The release or “receipt” of payment which the defendant offered in support of his plea of payment has upon it the name of the deceased Josh West. The defendant, an Attorney of the City of Welch, West Virginia, for many years as the record shows, testified that he saw the deceased affix his signature to the release. Another witness, whose name was affixed to the release as a witness to the signature of West, and who, as far as the evidence shows, was disinterested, testified he saw West affix his signature to the release. The witness Billig, Cashier of a bank in Pine-ville, West Virginia, the city where this trial was held, comparing the signature on the release with the signature of the deceased West on another instrument that the witness Howard stated he saw West sign, was positive that the same man had signed both instruments. In rebuttal, the witness Edwards, also a banker for many years, and qualifying under the rule recognized in this State as a handwriting expert, Johnson v. Bee, 84 W. Va. 532, 100 S. E. 486, comparing in his testimony the signature on the release and the signature of West on the identified document, stated: “If I had that signature on file, I wouldn’t pay on this one.” But when he was asked this question on cross-examination, he made the following answer: Q: “Would you say Josh West did not sign that on No. 1?”; A: “No. I wouldn’t say that. It is not exactly the signature that we have on some checks.” Again, question and answer: Q: “You cannot say positively that it is not the signature of Josh West?”; A: “I wouldn’t say it is or it is not.” In rebuttal also, the plaintiff produced some oral testimony, particularly [173]*173that of a nephew of the deceased West who was rather firm in his statement that the deceased had not been in the City of Welch during the period when the release was alleged to have been signed. However, he admitted that it was possible for him to have been there.
In giving effect to the rule laid down in Satterelli et al. v. Cropper, 109 W. Va. 430, 155 S. E. 312, that: “Where a receipt is properly introduced in evidence, the burden of proof to contradict or explain such receipt rests upon the party disputing it.”, and considering the positive oral testimony of the three witnesses for the defendant, this Court is constrained to hold that the verdict of the jury was contrary to the clear preponderance of the evidence. “Where in a trial of an action at law before a jury, the verdict returned is without evidence to support it, or is plainly wrong, it will be set aside by this Court, the judgment entered thereon reversed, and the case remanded for a new trial.” Syllabus, DeLuz, et al. v. Board, 135 W. Va. 806, 65 S. E. 2d. 201. To the same effect see Bower, Adm’r. v. Brannon, 141 W. Va. 435, 90 S. E. 2d. 342.
The judgment of the Circuit Court of Wyoming County is reversed, the verdict of the jury set aside, and a new trial is awarded the defendant.
Reversed, verdict of the jury set aside; new trial awarded.