Belknap v. Wendell, 21 N.H. 175

Belknap v. Wendell

21 N.H. 175 | Superior Court of New Hampshire | 1850

Gilchrist, C. J.

In this case, the first issue is on the replication that the articles replevied were the property of the plaintiffs.

As to the second issue, the replication to the avowry alleges, that at the time of the taking, the articles were duly mortgaged to the plaintiffs. The rejoinder denies this allegation, and issue is joined upon it. The affirmative of both issues is therefore with the plaintiffs. ■

The general rule is, that the point in issue is to be proved by the party who asserts the affirmative. “ It is a general, if not a universal rule, that the burden of proof rests on him who has the affirmative of a proposition.” Mellen, O. J., in Ross v. Gould, 5 Greenl. 210. And where the affirmative is upon a party, he has the right to open and close. Brooks v. Barrett, 7 Pick. 94. 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 in defence: the burden of proof is upon him, and yet the plaintiff opens and closes the argument. And this is uniformly the case unless the defendant, by the form of pleading, admits the plaintiff’s right of action, but for the cause which he sets up in his plea, no proof in such case being required on the part of the plaintiff. Brooks v. Barrett, 7 Pick. 100. The plaintiff begins and has the right of reply, in all cases where the defendant’s pleadings, or any part of them, deny the whole, or any part, of the plaintiff’s pleadings, so as to leave any affirmative allegation, on his side, to be established by proof. Per Williams, J., in Comstock v. Hadlyme, 8 Conn. R. 261. In illustration of the rule, that the party who *182has the affirmative is to begin and close, is the case of Fowler v. Coster, 3 C. & P. 463. The defendant pleaded in abatement, that the promises were “ made jointly with A.” Replication, that they were not made jointly with A. It was held, that on the trial of this issue, the defendant should begin. In Curtis v. Wheeler, 1 M. & M. 493, which was replevin, the Attorney-General, for the defendant, said, that in replevin both parties were equally actors ; that therefore the plaintiff had no privileges, and the right of beginning was with the party on whom the affirmative substantially lay. But Lord Tenterden, after stating the plea, said it presented “ an issue, the affirmative of which is on the plaintiff, and on proof of which he would be entitled to a verdict. I can make no distinction between replevin and other forms of action; the principles applicable to all are the same. The consequence is, that the plaintiff is entitled to begin, as there is an affirmative issue upon him.” Williams v. Thomas, 4 C. & P. 234; Cooper v. Walkley, 3 C. & P. 474. In Jackson v. Hesketh, 2 Starkie’s Rep. 454, (Am. ed.) Bayley, J., said, the party who had the affirmative of the issue ought to begin, and where there were several issues, and the proof of one of them lay on the plaintiff, he was entitled to begin. In Fish v. Travers, 3 C. & P. 578, Best, C. J., held, that in trespass, where there are special pleas of justification, but no plea of the general issue, the defendant is entitled to begin, although the declaration alleges special damage.

In Massachusetts, the opening and close seem to be regarded as a matter of right; and a verdict was set aside because of an erroneous ruling in that particular. Davis v. Mason, 4 Pick. 136; Sawyer v. Merrill, 6 Pick. 480. But in England, the right to begin is a matter resting in the discretion of the court, where any thing of a peculiar character occurring on the trial, makes a deviation from the usual practice the more convenient course. Goodtitle v. Braham, 4 Term Rep. 497. In the case of Branford v. Freeman, 1 Eng. L. & Eq. Rep. 444, it was held, in the Court of Exchequer, that a new trial should not be granted, because a judge has wrongly ruled at nisi prius, as to which party must begin, unless such ruling did clear and mani*183fest injustice. Geach v. Ingall, 14 Mees. & W. 97; Booth v. Milns, 15 Mees. & W. 669. But the ruling of the court in the present case accords with the general practice and the authorities ; and the question, whether the court have any discretion in the matter, does not arise. It was necessary for the plaintiffs to offer evidence of property in the first instance, and we think the ruling was correct.

The next point made by the defendant, relates to the paper attached to the mortgage. The case finds that the mortgage described “ the following goods and chattels,” and then followed a list of articles on a separate piece of paper, and attached to the mortgage by a wafer. The defendant contends that no articles are described in the mortgage. He admits that the deed would have been good had it referred to the schedule, but contends that, as it does not, the schedule cannot be taken to be a part of the deed, and that the plaintiffs were bound to show affirmatively that the schedule was annexed to the deed when it was executed.

In the case of Weeks v. Maillardet, 14 East, 568, cited by the defendant, Maillardet bound himself under seal to deliver to the plaintiff, “ the whole of his mechanical pieces as per schedule annexed.” The plaintiff, in his declaration, alleged that at the time of the execution of the articles there was then and there annexed a schedule, &c. It was held, that the schedule formed part of the deed, which, without it, would be insensible; and that the defendant might show, in his defence, that the schedule was not annexed at the time of the execution of the deed. The question was, whether the objection could be taken on the plea of non est factum; and it was held that it was part of the issue, the proof of which lay on the plaintiff, to show that the defendant executed a scheduled instrument. This case, therefore, does not support the position that the schedule should have been referred to, in order to be considered a part of the deed.

To show, that the plaintiff was bound to prove affirmatively that the list of articles was annexed to the deed at the time of its execution, the defendant cites Emerson v. Murray, 4 N. H. Rep. 171. That case decides, that, before a writing on the back of a deed can be considered part of the deed, it must be shown *184affirmatively to have been on the instrument when executed. This decision does not apply to the state of facts in the case before us.

This schedule is not an alteration of the deed, but it completes it, and makes it perfect. It is something, without which the deed would be insensible, like the case of Weeks v. Maillardet. It is not an erasure, nor an interlineation; nor is there any thing in it which raises a suspicion of fraud. There is nothing requiring us to make a presumption against it; but, in the absence of evidence, the presumptions are all in its favor. It might have been annexed to the deed after its execution; but there is no reason for supposing it. We think the exception must be overruled.

The Act of June, 1845, provides, that where partners are parties to a mortgage, the affidavit of one of them shall be sufficient. The plaintiffs had contracted to build the Portsmouth and Concord Railroad, and it was admitted that they shared the profit and loss of that contract. They- were as much partners as if they had agreed to share the profit and loss of buying and selling goods of a particular description, and the affidavit was properly made by one of them.

There is no doubt that the general rule is, that a party claiming under a deed, must show, as against existing creditors, that the deed was made upon a good consideration. But the creditor may admit the consideration to have been sufficient, or he may introduce evidence himself to prove it; and after that, he cannot be permitted to say, by way of exception, that the plaintiff was bound to prove the consideration. In this case, he offered the statement of one of the plaintiffs in a disclosure, that the consideration of the deed was money advanced; and therefore this exception cannot be sustained.

The case finds, that the demand for an account was addressed to all the plaintiffs, but was served only upon Hale. With what reason, then, could the defendant expect the account should - be sworn to by the rest of the mortgagees, when it does not appear that they were notified of the demand ? The statement of the debt secured by the mortgage, is sufficiently intelligible. The *185dates and amounts of the notes are given, so that the sum due on them could be ascertained. If the account be erroneous, it contains, in itself, enough to show in what particulars errors have been committed. If the interest is not correctly cast; if the charges for the mortgage and for recording, and the sum of $>500, stated as before advanced, are not due upon the mortgage, the enumeration of them does not mislead any one. It was not the intention of the statute, that such an account should be omni exceplione major, but only that a reasonable degree of accuracy should be required; and such, in our opinion, has been attained in this case.

Judgment on the verdict.