Downing

Appeal from a judgment for the plaintiff. This is a suit by the assignee of a note of date May 9, 1898, executed by the defendants to one Joyce, the plaintiff’s assignor, for the sum of twelve hundred dollars, with interest at the rate of eight per cent per annum from date, com pounded- quarterly. The complaint alleges that no part of said promissory note, or the interest thereon, has been paid, and that the amount thereof, with interest, is now due and owing from the defendants. The answer denies these allegations, or that there is due to the plaintiff the amount claimed or any amount, and further alleges that the amount mentioned in the note, with interest, has been fully paid and discharged. There is also what is called a “supplemental and amendatory and additional answer, ’ ’ alleging that the note executed to Joyce was secured by a chattel mortgage upon certain horses; and also setting up the equitable defense stated below. This document, as it is written, is without coherence or sense, by reason of the words “plaintiff” and ■“plaintiff and his wife” being written therein, instead of the words “defendant” and “defendant and his wife,”—which were plainly intended. Correcting…

I concur in the judgment for ' the following reasons:—

The due execution of the note in suit, and its assignment to plaintiff, and that the latter is the “owner and holder” thereof, is admitted by the defendants’ failure to deny the same. Inasmuch as the execution of the note and ownership in plaintiff were admitted by the pleadings, if the case had been submitted without any evidence the plaintiff would have been entitled to a judgment for the principal and interest of his note. The burden was on defendants to prove their affirmative defense as to the trust fund. It was also on them to prove their affirmative defense of payment. It is held that while the plaintiff must allege nonpayment in his complaint, yet he need not prove this negative allegation, but the defendant must prove payment, if he relies upon it as a defense. The admission of the execution and ownership of the note established an indebtedness, and such indebtedness would be presumed to continue until it was shown to have been extinguished. (Melone v. Ruffino, 129 Cal. 514 , [ 74 Am. St. Rep. 127 , 62 Pac. 93 ]; Thompson v. Thompson, 140 Cal. 545 , [ 74 Pac. 21 ].)

There being no evidence in the record, it is…