Where the defendant pleads by way of confession and avoidance, after the plaintiff has introduced sufficient testimony to make out a prima facie case, the burden is then upon the defendant to establish his defense by a preponderance of the evidence, where such matter of defense is denied by the plaintiff. For instance, where the plaintiff sues upon a promissory note, and the defendant pleads payment, the burden of proving such payment is upon the defendant, and if his evidence on this issue is not sufficient to overcome the evidence thereon by the plaintiff, the plaintiff will prevail. The same rule is true where the defendant pleads failure or partial failure of consideration.

Where the plaintiff's replication does not traverse or deny the defense set up by the defendant in his plea, but confesses and avoids the material matters therein alleged, by setting up new facts, which are denied by the defendant, then the burden is on the plaintiff to establish by a preponderance of the evidence the new facts set up by him.6

3 Bissell vs. Wert, 35 Ind., 54;

Thayer vs. Boyle, 30 Me., 475; Clark vs. Dibble, 16 Wend., 601; Berckmans vs. Berck-mans, 17 N. J. Eq., 453; Fountain vs. West, 23 Iowa, 9.

4 Grimes vs. Hilliary, 150 I11., 141;

German Fire Ins. Co. vs.

Klewer, 129 I11., 599.

5 Graves vs. People, 18 Col., 170; People vs. Aiken, 121 Mich., 1; Kollock vs. State, 88 Wis., 663.

6 Meeh vs. Missouri Pac. R. Co., 61 Kan., 630; Clapp vs. Cunningham, 50 Iowa, 307.