
    Samuel W. Spaulding vs. Richard Hood.
    In an action brought in the court of common pleas, by the indorsee against the maker of a promissory note, a defendant, who, by filing an admission, of all the facts necessary to be proved by the plaintiff in order to make out a prima facie case, obtains the right to open and close, under the forty-first rule of that court, is not thereby precluded from introducing evidence to show that the plaintiff has no title to the note.
    One who had sold goods, and taken a promissory note for the price, took the benefit of the insolvent laws; his assignee retook the goods from the purchaser, and disposed of them; and the insolvent afterwards indorsed the note to one who had full knowledge of these facts. In an action on the note, brought by the indorsee against the maker, it was held, that if the assignee took the goods, by virtue of any stipulation on the original sale, or of any fraud in the sale, or, with the consent of the purchaser, for the purpose of rescinding the sale, the defendant was not liable; but that if the assignees took the goods wrongfully, without the assent of the purchaser, and there was in fact no rescission of the sale, the defendant was liable; and that the burden of proof was on the defendant, to show that the goods had been so retaken or retransferred, as to discharge him from liability on the note.
    This was assumpsit brought in the court of common pleas on a promissory note, dated the 28th of February, 1849, signed by the defendant, payable to Mace & Sawyer, and by them indorsed to the plaintiff.
    The defendant pleaded the general issue, and, in his specification of defence, gave notice that he would show, that the note in suit was given to Mace & Sawyer at its date, in payment for lumber; that Mace & Sawyer on the 20th March, 1849, took the benefit of the insolvent law, and that William D. Northend and Asa Sawyer, Jr., were appointed their assignees; that after the insolvency of Mace & Sawyer, and after the appointment of the assignees, Mace, of the firm of Mace & Sawyer, wrongfully passed the note to the plaintiff, with full knowledge on the part of the plaintiff, that Mace had no right to pass the note; that the assignees, with the plaintiff’s knowledge, revoked the sale made by Mace & Sawyer, and reclaimed and took possession of the lumber before the note was passed by Mace to plaintiff; and that the consideration of the note failed, and the plaintiff took it with knowledge. And the defendant filed the following admission in writing: “ The defendant, upon the trial, will admit that he signed the note, and that it was indorsed to the plaintiff, and all such facts, as it is necessary for the plaintiS to prove, in order to make out a primd facie case, and will, under the rule  of the court, claim the opening and close of the case before the jury.”
    At the trial in the court of common pleas, before Perkins, J. the defendant, upon the above admission, took the opening and close in the case. The defendant, in the outset of the trial, stated that he should make an admission of the plaintiff’s case, and claim the opening and close under the rule of the court of common pleas. He then read the above admission. This was frequently adverted to, and was treated throughout the trial as an admission under the forty-first rule of that court. The defendant contended that the plaintiff had no title to the note, that the transfer of the note to him by Mace & Sawyer was fraudulent, and that no title of the note passed to the plaintiff; but the court ruled, that as the defendant had admitted the plaintiff’s case under the rule of court, and thereby obtained the opening and close, he must be regarded as having admitted all those facts, which it was incumbent on the plaintiff to prove in his opening on the general issue, and on which the burden of proof would be on the plaintiff throughout, and in reference to this point of title, the only one affected by this ruling, it was a matter to be made out by the plaintiff, the burden of proof was on him, and the defendant must be taken to have admitted it. This ruling and these suggestions were so far acquiesced in by the defendant, that he made no intimation that the court had not taken his admission in the sense m which he intended it; but he did deny that the effect would be to preclude him from questioning the plaintiff’s title. No point or suggestion was made at any time during the trial of any difference between the phraseology of the admission and the language of the rule of court, nor was the attention of the court called to that matter by the counsel on either side. '
    The defendant introduced evidence tending, to prove the facts stated in his specifications of defence, and thereupon he contended that he had proved that the note in suit was given by the defendant for lumber sold and legally delivered to him by Mace & Sawyer on the day of the date of the note; that at or about the same time, and before actual delivery of more than one load of the lumber, all the property of Mace & Sawyer was taken possession of by an officer; that on the 20th of March, 1849, Mace & Sawyer presented their petition for the benefit of the insolvent law, and after due proceedings had, William D. Northend and Asa Sawyer, Jr. were chosen assignees, and, in May, 1849, took possession of all the lumber sold by Mace & Sawyer to the defendant, both the load which had been delivered, and the remainder which had not; and sold part of it and worked up part of it in the mill before occupied by Mace & Sawyer; and that the plaintiff, on the last day of June, 1849, purchased the note of Mace & Sawyer with full knowledge of all the facts. It appeared, that on the 17th of May, 1849, when the assignees of Mace & Sawyer were selling the property of the insolvents, the defendant claimed a certain pile of lumber, and forbade the sale of it, one of the assignees said, “ Yes, yes, Mr Hood, we understand that,” and directed the sale to go on, and the pile was sold. There was no evidence to show the reason or ground on which the assignees took the lumber in question, or that they ever claimed to rescind, or had any right to rescind, the sale, other than the facts, that being assignees of Mace & Sawyer, they did take and use the lumber as above stated. The defendant then requested the court to rule that the facts, that Northend and Sawyer, being assignees of Mace & Sawyer, took and used or sold the lumber in question, under the circum stances, was in law a rescission of the sale of the lumber so as to avoid the consideration of the note and form a defence to this action. The judge declined so to rule; but did rule, that if there was a valid sale and delivery of the lumber to the defendant, and the title to the lumber had passed to him, then the mere fact that Northend and Sawyer, after they became assignees, took possession of the lumber, and held it or sold it, would not in law necessarily constitute such a rescission; but such rescission would still depend upon the facts which must be inquired of by the jury; that if the assignees took the lumber under any right to do so by virtue of any stipulation in the original sale, or by reason of any fraud or invalidity, in fact or in law, in that sale, or if they took possession of the lumber for the purpose of rescinding the sale thereof, and this was assented to by the defendant, then, in either case, it would afford a defence, but that if it appeared in the case, that the assignees took the lumber without any right, and by a mere act of wrong, without the consent of the defendant and against his protest, (of which there was evidence,) though the assignees might be liable for the wrong so done, still such conduct would not necessarily vacate or avoid this note, or furnish a defence to it in the hands of this plaintiff in the form in which the defence was presented; that the question was for the jury, on all the facts and the rulings, whether there had been any such rescission of the sale as that claimed by the defendant, and so far as the defendant depended on a rescission of the sale, to avoid the consideration of the note, the burden of the proof was on him to show, that the lumber had been so retaken or retransferred by the defendant as to discharge him from the note, or to show a failure or want of consideration therefor.
    The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.
    
      J. W. Perry, for the defendant.
    
      W. D. Northend, for the plaintiff.
    
      
       By the forty-first rule of the court of common pleas, passed on the first Wed nesday in February, 1846, “ whenever the defendant in any action shall file a statement in writing of any specific matter of discharge or avoidance of the action, he may, at any time before trial, file also in writing an admission of all the facts necessary to be proved by the plaintiff in his opening on the general issue; and such defendant shall then be entitled to open and close; unless the plaintiff shall file, in writing, an admission of all the material facts alleged in the defendant’s statement, and shall, by way of reply, state some specific and substantive matter in discharge or avoidance thereof.” Colby’s Prac. 445.
      At a meeting of the justices of the court of common pleas, held at Boston, on the 28th of July, 1853, this rule was rescinded.
    
   Fletcher, J.

The counsel for the defendant seems to have understood the rule of the court of common pleas as giving him a right to open and close upon admitting merely a primd facie case on the part of the plaintiff. Upon this construe* tion, the defendant might have the right to open and close, while the burden of proof would be all the time on the plaintiff. As, for instance, in a suit on a promissory note, by merely admitting the signature, the defendant would give the plaintiff a primd facie case. The defendant might then set up a want of consideration in defence, and introduce evidence to overcome the primd facie case of the plaintiff; the plaintiff might then introduce evidence to strengthen his primd facie case, and the weight of evidence would be shifting from time to time, but the burden of proof would lie on the plaintiff all the way through. It would be wholly unreasonable that the defendant, in such case, should have the right to open and close.

The court of common pleas, in this case, construed their rule so as to require the defendant, in order to obtain a right to open and close, to admit, not merely a primd facie case, but a perfect title in the plaintiff, so that the defendant could set up only matter strictly in avoidance, notwithstanding his specification of defence. It is perfectly manifest, upon looking at the written admission, that the defendant made no such admission as the rule required, upon this construction of it, to give him a right to open and close. The defendant, in terms, admits only such facts as it was necessary for the plaintiff to prove, to make out a primd facie case. The court below, therefore, should not have allowed the defendant to open and close, but should have permitted him to put in the evidence offered by him.

The rulings and directions of the court on the other points were correct.

New trial in the court of common pleas.  