GOLDTHWAITE, J.
1. From the facts stated in this bill of exceptione, the case evidently belongs to that class in, which a jury is rarely, if ever, mistaken upon the merits, unless led astray by some misconception of the law which should govern it, and therefore their verdict ought not to be disturbed, when the error is not entirely apparent. Several of the charges refused by the court, as well as one of the matters ruled at the trial, may involve abstract error, but. which, however, vanishes when the whole case is considered, except in one particular.
The first point insisted on by the counsel, for the reversal of the judment, is, the exclusion of the opinions of witnesses with reference to the annual value of the work done at the smith’s shop. Without debating how far the reason is sound, 'on which, apparently, these opinions were rejected, or whether in a proper case they might not be admissible, we are clear they were not so in this. If the annual value of the work was made to appear, there is nothing in the proof to make the plaintiff chargeable with it, except so far as collections were actually made by him, or the proceeds of the shop appropriated to his use. To this extent only could he be considered the debtor of his employers, and the sums could be shown by better evidence than ascertaining the probable annual value, and the showing of that, had no ten*96dency whatever to fix the sums received by the plaintiff. [Barker v. Sample, 6 Ala.Rep. 255.]
2. The connection between the brothers, in carrying on the plantation and shop, appears from the proof to have been in the nature of a partnership, and so considered, it is clear the survivor was in law entitled to the outstanding dues. The debts collected by the plaintiff, although accruing when both brothers were living, became the property of the intestate, as the survivor, and the sum collected was a proper matter of set off to an ordinary demand of the plaintiff. [Slipper v. Stidestone, 5 Term, 493; French v. Andrade, 6 Ib. 582.] And the rule is the same if the brothers are considered as joint tenants. [Chitty’s Pl. 21, 77.] It is possible the court below took a different view of the law than this, though here we may be mistaken, as the proof rejected under the pléa of set off, was let in to show fraud and imposition in taking the note. The abstract error, even if the court misconceived the law, was calculated to produce no injury, as the note, if fairly obtained, was entitled to be considered as the settlement of all outstanding accounts. [Copeland v. Clark, 2 Ala. 388" court="Ala." date_filed="1841-01-15" href="https://app.midpage.ai/document/copeland-v-clark-6501471?utm_source=webapp" opinion_id="6501471">2 Ala. Rep. 388. J The jury having found the amount of the note for the plaintiff, it seems they did not consider the fraud as established, and therefore we should not feel warranted in reversing on this ground, although satisfied that the law of set off was mistaken in the court below.
3. The 2d and 12th charges which the court refused, seem to indicate the impression of the defendants, that a distinction could be taken with respect to the legal capacity to make different kinds of contracts, for they expressly put the request with reference to such a contract as this. The impression is more obvious from the circumstance, that a different charge was given on this identical point. In this view, both charges were properly refused, as the capacity to make any contract, is so to make all contracts. [McElroy v. McElroy, 5 Ala. 81" court="Ala." date_filed="1843-01-15" href="https://app.midpage.ai/document/mcelroy-v-mcelroy-6501919?utm_source=webapp" opinion_id="6501919">5 Ala. Rep. 81.] If monomania is to be considered as creating an exception to this general rule, it is sufficient to say, there was no pretext of that here.
4. Notwithstanding the strong disinclination we feel to send a case like this to a second trial, after what seems to us to have been a full examination of all the facts and circum*97stances of the transaction, we find it impossible to sustain the refusal to give the 15th charge as requested by the defendants. The note certainly imports a consideration, but in the nature of things, it is generally difficult, and frequently impossible, to prove the want of consideration, except by showing circumstances tending to cast strong suspicion of imposition, or mistake in the transaction. The onus of proving the note was without consideration, was on the defendants ; but when a case is made by them, from which the inference is fair, that either no consideration, or one of a particular kind was at its foundation, the onus was then shifted to the opposite side, to sustain the note, by showing what the consideration was. It is said, that in the examination of a contested fact, the onus probancli may, in the course of the trial,be thrown from one party to the other several times, according as the complexion of the proof may vary. [Cowen & Hill’s Notes, 475; Brooks v. Barrell, 7 Pick. 94.] A note is the statutory evidence of a debt, but not in its nature conclusive, or incapable of contradiction; it is therefore subject to be rebutted by any proof which satisfies the jury against it; and in our judgment, no rule can be more just, than one which requires the presumption of imposition, or mistake, to be rebutted by showing the real consideration for which the note was given. Even when the action is by an indorsee, and the note is shown to be without consideration, or a strong suspicion of fraud is raised, the plaintiff is required to support his title by showing the consideration paid by him for the note. [Marston v. Forward, 5 Ala. 347" court="Ala." date_filed="1843-01-15" href="https://app.midpage.ai/document/marston-v-forward-6501988?utm_source=webapp" opinion_id="6501988">5 Ala. Rep. 347; C. & H’s Notes, 477; 2 Greenl. 146, $ 172.] It would be strange if a more liberal rule was extended to the original party. We are not called on here to weigh the -evidence, or to express an opinion upon the preponderance of the -one or the other scale, nor is it doing so to say, the defendant’s proof made a prima fade case, that the only consideration for this note was, the sum due at its date, from the intestate to the plaintiff; on a settlement of the accounts between them. If this proof necessarily created the presumption, either that nothing was due, or a less sum than the note called for, these were suspicious circumstances, and if not rebut*98ted by showing-, another consideration for the note, certainly ■warranted the-presumption of fraud, or, in the language of the request, was a strong badge of fraud, when connected with the fact that the settlement was made with a man of weak intellect, to say nothing of him as an habitual drunkard1.
The refusal of this charge may have had a direct influence on the verdict. The court refusing to instruct the jury, that these circumstances of suspicion did not call on the plaintiff for rebutting proof, may have induced the impression, that the legal force of the note, as ascertaining the extent of the debt, was unimpaired. If the jury acted on this impression, they could do no otherwise than return a verdict for the a-moúnt of the note. We are not authorized to speculate, whether the verdict was found on the whole evidence before the jury, as the result we have stated may have been the consequence of the refusal.
For the1 error in refusing this charge, the judgment is reversed and the cause remanded.