Swan v. . Carawan

84 S.E. 699, 168 N.C. 472

Opinion

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.