Exeter Bank v. Rogers

It hardly admits a doubt that, as the pleadings stood, the burthen of proof, in this case, was upon the defendant. The plaintiffs alleged, in their replication, that Rogers received a certain sum, for which he had not accounted. There are several ways in which the defendant might have rejoined. Thus, he might have denied that Rogers received the money mentioned in the replication, and this would have thrown the bur-then of proof upon the plaintiffs, to show that Rogers had received money for which he had not accounted.— There are in the boobs instances of such a rejoinder, in a case like this. 8 Barnwell and Cresswell, 556, Whitnash v. George; 8 Pick. 524, Ashby v. Wellington.

But the defendant has, in substance, rejoined that Rogers accounted for the sum mentioned in the replication, and this, if true, is a good answer to the replication.— There is, in 4 B. & P. 34, Dana v. Gerdler, an instance of such a rejoinder. But it is not denied, in such a. rejoinder, that the money mentioned in the replication was received, as there alleged. It is therefore admitted that it was received. For, in pleading, what is not denied is admitted. The only question was, then, had Rogers accounted for the money ? This was clearly to be shown by the defendant.

Judgment for the plaintiffs.