The opinion of the court was delivered by
The question in this case arises on the onus. It is doubtful on the admission of the parties whether the assignment of the judgment to the garnishees, or the service of the attachment was prior in time, and in the absence of inference or presumption on either side, which of the parties was bound to furnish the proof? A cross demand against the defendant in an attachment may be' set-off by the garnishee, as it may by a defendant in -any other suit, but subject to the same rules and restrictions; and a defendant may not set-off a demand acquired after the action was instituted. Nor may a plaintiff give evidence in a cause of action incomplete at the impetration of the writ. But set-off is in substance a cross action; and a cross demand also must have been complete when the action was instituted. In this respect the parties stand on equal ground. Neither is allowed to get the whip hand and souse the other in costs, by starting before he was ready. But who is to prove that the cross demand was not subsequently acquired? Certainly, he who asserts the fact. There is no presumption in the case; and he is bound to support his allegation with proof. A plaintiff would not be admitted, to prove a cause of action, without proving, if there were any doubt about it, when it accrued; and for a similar reason, a garnishee, may not set-off a cross demand without proving that it was acquired before the attachment was laid.
Judgment of the court below reversed and judgment rendered here for the plaintiffs on the case stated.