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that: "Every holder is deemed prima facie to be a holder in due course; but when it is shown that the title of any person who has negotiated the instrument was defective, the burden is on the holder to prove that he or some person under whom he claims acquired the title as a holder in due course,' etc. Under such a statute it is very clear that, when it was shown that the title of the company which negotiated the note to the plaintiff was defective, the burden was on the plaintiff to show that he acquired title as a holder in due course as defined in section 1604. Citation of authorities in support of a proposition so plainly declared by the statute would seem unnecessary. We, however, refer to section 168, p. 228, of Selover on Negotiable Instruments (2d Ed.), and the cases there cited; and especially refer to Parsons v. Utica Cement Mfg. Co., 80 Conn. 58, 66 Atl. 1024; Regester's Sons Co. v. Reed, 185 Mass, 228, 70 N. E. 53; Hodge v. Smith, 130 Wis. 326, 110 N. W. 192, and Bank v. Jordan, 139 Iowa 499, 117 N. W. 758.

The appellant, however, urges that the burden, cast upon him when fraud was shown in the inception of the note, was discharged by the giving of his testimony that he purchased the note in good faith for value before maturity in the usual course of business and without notice of the fraud; and that the burden then shifted to the defendant to show that the plaintiff took the note with knowledge or notice of the fraud. Here counsel confuse the term, "burden of proof" the onus probandi-which does not shift, with that of the "burden or duty of proceeding," or going forward, which in the course of the trial upon various facts may, and frequently does, shift from one party to the other. Whenever the existence of any fact or facts is necessary in order that a party may make out his case or establish a defense, the burden of proof -the onus probandi-is on such party to show the existence of such fact or facts. That burden does not shift and is unaffected by the evidence as the trial proceeds. After all the evidence is in, the one having the burden will lose unless the evidence bears more heavily in his

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38 Utah-23

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favor. Upon proof of fraud in the inception of the note, the statute undoubtedly casts on the holder, not only the mere duty or burden of proceeding or of going forward, but the burden of establishing the existence of facts showing that he, or some person under whom he claims, acquired title as a holder in due course, and as defined in section 1604, which includes the fact that at the time the note was negotiated he, or the person through whom he acquired title, had no notice of the fraud or infirmity. If evidence is given by him tending to show that he was such a holder in due course, that does not then shift the burden of proof to the defendant to establish the fact that he, or the person from whom he acquired title, had notice or knowledge of the fraud, or that no value was paid for the note, or that it was purchased overdue, but merely the duty of proceeding in the production of evidence if he desires to meet or overcome the effect or weight to be given the evidence so adduced by the holder. But, upon all the evidence on such issue, the holder will lose unless the evidence bears more heavily in his favor. We think the charge in this particular was right.

It is further urged that the plaintiff, after the admission of fraud in the inception of the note, having testified that he in good faith purchased the note before it was overdue, for value, and without notice of the fraud, or of any infirmity of the note, and no evidence on behalf of the defendant being introduced to contractdict the plaintiff, or refute his testimony, was entitled to a directed in his favor. Where a note was defended against on the ground of fraud in the inception of the note or fraudulently put into circulation, and where the plaintiff testified that he in the due course of business acquired the note in good faith before maturity for value and without notice, and the defendant introduced no testimony to contradict the plaintiff, it has been held that the defendant was entitled, nevertheless, to go to the jury on the question whether the plaintiff took the note for value and without notice of the fraud. (Bank v. Fountain, 148 N. C. 590, 62 S. E. 738; Bank v. Iron Works, 159 Mass.

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158, 34 N. E. 93.) The facts of the case in hand do not require us to go to that extent, for the circumstances of the transaction under which the plaintiff acquired the note, as testified to by him, themselves cast suspicion upon the questions of his good faith, his inncence of the fraud. and the value paid by him for the note. While a jury may not arbitrarily disbelieve a witness and reject his testimony, neither are they bound to accept a fact as established merely because he testifies to it, when the circumstances render its existence, or the testimony of the witness, improbable or doubtful. We think that the evidence was such that the issue as to whether the plaintiff took the note for value and without notice of its infirmity was for the jury.

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But the court gave an instruction also complained of which we think is erroneous and prejudicial to the plaintiff. The note was indorsed to the plaintiff "without recourse." The court instructed the jury: "While the indorsement without recourse is not of itself sufficient to prevent the plaintiff from being a holder in due course, nor to charge him with notice of any defense, and while the fact, if you find it to be a fact, that the plaintiff purchased the note for less than its face value, is not of itself sufficient to charge the plaintiff with notice of any defenses or existing equities against the payee, yet the jury may consider each of such facts, if you find them to be facts, in connection with all of the other evidence in the case, determining whether or not the action of the plaintiff in taking the said note was in good faith or in bad faith."

Again referring to the statute, we find it provides (section 1590) that:

"A qualified indorsement constitutes the indorser a mere assignor of the title to the instrument. It may be made by adding to the indorser's signature the words 'without recourse' or any words of similar import. Such an indorsement does not impair the negotiable character of the instrument."

In 4 Am. and Eng. Ency. Law (2d Ed.), 276, the rule is stated that:

"An indorsement 'without recourse' or other qualified indorsement does not in any respect affect the negotiability of the instrument, but simply qualifies the duties, obligations, and responsibili ties of the indorser, resulting from the general principles of law. Nor does such indorsement cast any suspicion on the character of the paper, nor indicate, in any case, that the parties to it are conscious of any defect in the security, or that the indorsee does not take it on the credit of the other party or parties to the note. On the contrary, he takes it solely on their credit, and the indorser only shows thereby that he is unwilling to make himself responsible for the payment."

In 7 Cyc. 809, it is said that:

"An indorser may transfer title and at the same time, except so far as he is still chargeable with implied warranties as a seller of the paper, create no liability as indorser by indorsing a bill or note 'without recourse' or with words which are deemed to be of equivalent import; but the addition of these words will not affect the negotiability of the instrument and will not be a notice of defects to put a purchaser on his guard."

Cases are there cited supporting the texts. We especially refer to the case of Hatch v. Barrett, 34 Kan. 223, 8 Pac. 129, where the court said "that the indorsement qualified by the words 'without recourse' is not out of due course of trade and does not throw any suspicion upon the character of the paper," and to the case of Stevenson v. O'Neal, 71 Ill. 314, where it was said that "we do not doubt such an indorsement (without recourse) might aid in creating such a suspicion (some infirmity in the note), and would put the assignee on inquiry; but we have searched the authority establishing the proposition to the extent claimed for it (raising a suspicion of infirmity), but in vain.” The effect of such an indorsement is merely to qualify "the duties, obligations, and responsibilities of the indorser." We do not see how it can be considered as evidentiary of notice of any infirmity of the instrument. While the court charged the jury that it was not alone sufficient to establish. such notice, the court, nevertheless, charged them that it was a proper fact or circumstance to be considered by them in determining whether the plaintiff took the note in good or

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bad faith. From such an instruction the jury necessarily must have understood that plaintiff's taking the note with such an indorsement was some evidence properly to be considered by them as bearing on the question of his good faith and notice of the infirmity. We do not think it was. Το hold that it was in in effect to hold that the negotiable character of the instrument is to that extent impaired.

Because of this error, the judgment of the court below is reversed, and the case remanded for a new trial.

the appellant.

FRICK, C. J., and MCCARTY, J., concur.

Costs to

H. L. GFIFFIN COMPANY v. HOWELL, Judge.

No. 2110. Decided January 14, 1911 (113 Pac. 326).

1. MANDAMUS-RULINGS REVIEWABLE-DISSOLUTION OF ATTACHMENT. A ruling by the district court dissolving an attachment is not reviewable on application for a writ of mandate to compel the district court to reinstate and proceed with the case. (Page 361.)

2. COURTS-JURISDICTION-DETERMINATION.

A court cannot divest

itself of jurisdiction by erroneous decision that it has no jurisdiction. (Page 361.)

3. ACTION-NATURE-CONTRACT OR TORT. A complaint stating that plaintiff bought goods from defendant, who agreed to properly load them for shipment, but negligently failed to do so, rendering goods unmarketable, etc., states an action on contract and not in tort. ((Page 361.)

4. ATTACHMENT-BASIS. An attachment rests on the affidavit therefor and not the complaint. (Page 361.)

5. ATTACHMENT-JURISDICTION OF RES-BASIS. The court's control over the res in attachment arises from seizure of the property under the writ. (Page 361.)

6. ATTACHMENT-NATURE OF PROCEEDING. Attachment against personalty is in the nature of a proceeding in rem, and also of an action in personam. (Page 362.)