
    Biggs v. Evans.
    
      Friday, November 29.
    Debt on a promissory note. Plea, the general issue. The defendant proved that the note had been given in consideration of the payee’s assignment to him of his right to certain fees, but he did not show they had not been collected. Held, that the proof was not sufficient to defeat the suit.
    ERROR to the Lawrence Circuit Court.
    
      C. P. Hester, for the plaintiff.
    
      G. G. Dunn, for the defendant.
   Sullivan, J.

— Debt on a promissory note commenced before a justice of the peace. Plea, the general issue, sworn to. Judgment in the Circuit Court for the defendant.

The proof was, that the note was given by the defendant to one Stickney, the plaintiff’s assignor, in consideration that the latter had assigned to the former his right to certain fees on the docket of William Blair, a justice of the peace, a list of which is contained in the bill of exceptions. The indorsement of the note by Stickney, and the possession of it by the plaintiff, were also proved. The right of Stickney to the fees sold was net denied; and there ’was no evidence to show' that they had not been collected by the defendant.

On those facts, the Court erred in giving judgment for the defendant. It devolved upon the latter to show that the fees had not been collected, and that they had not been collected without fault on his part. Whether they were collected or not does not appear. There was no evidence to that point. The onus lay upon the defendant, and the proof, if any existed, was, manifestly, within his reach. The defendant cannot avoid the note, and retain the fees for which it was given.

Per Curiam.

— The judgment is reversed with costs. Cause remanded, &c.  