
    Lewis Godley vs. J. T. Barnes.
    
      Set-off — Promissory Note.
    
    Defendant offering in evidence as set-off a promissory note payable to a third person or bearer, must show that tlie title to the. note was in him at the commencement of the action.
    BEFORE MUNRO, J., AT BEAUFORT, JUNE, EXTRA TERM, 1860.
    The report of his Honor, the presiding Judge, is as follows:
    “ This was an action of assumpsit. Writ issued -, 1858. The promise was admitted, and defendant offered in discount the following paper:
    “/ By the first day of January next, I promise to pay Eldred Gooding, or bearer, the sum of thirty dollars, for value received this 24th February, 1857.’ Signed by the plaintiff.
    “Eldred Gooding, whose testimony was objected to by the plaintiff, but admitted by me, said the due bill was passed by him to defendant for valuable consideration, but without recourse. His testimony was in writing, by consent, and he did not state the date of the transfer to defendant. I sustained the plaintiff’s ground, 'that the defendant was bound to show that the title to the due bill was in him before the issuing of the writ in this case, and ruled out the discount.’ ”
    The defendant moved for a new trial, because, prima farde, the title to the due bill was in defendant, the bearer, from its date; and the burden of proving that it was acquired after the issuing of the writ was on the plaintiff. 2 Phil, on Ev. 17.
    
      Hutson, for appellant.
    
      Rhett, Youmans, contra.
   The opinion of the Court was delivered by

Johnstone, J.

A discount is in the nature of a cross-action, founded upon a right of action existing in the defendant at the time suit is brought against him; and it follows, necessarily, that he is bound to prove, in support of a discount, that he had the right of action which he proposes as a set-off, when he was sued.

It is in the nature of things that the burden should lie on him to prove the affirmative proposition that he held a right of action against the plaintiff when the latter sued him, rather than upon the plaintiff to prove the negative that no such right existed in the -defendant at that juncture of time. The note set up in discount -was not given to the defendant, but to a third person; and the presumption would be that the right remained in him, until proof made to the contrary.

I believe this has been the practice always in this State; and I am fully sure such has been the practice for the last forty years.

It is ordered that the motion be refused, and the appeal dismissed.

O’Neall, 0. J., concurred.

Motion refused. 
      
       Montague on Set-off, 15, 17, 18, 22, 35; 3 Chitty Plead. 51, 52; 3 Term. Rep. 186; 3 McC. R. 249; 4 Rich. R. 183; 10 Rich. R. 322; 11 Rich. R. 374.
     