Oliver Wendell Holmes, Jr.

“ The supreme court of the state put its decision on the burden of proof, following the analogy of illegal consideration. We hardly need consider whether proof that the note was so largely in excess of the percentage then allowable, especially when coupled with the improbability that the defendant ever had received in the past an annuity so much larger as to warrant such a credit, did not constitute at least a prima facie case. ”

“ He occupied the position of advantage, and that, rather than formal logic, determines the burden of proof. It may be that it lay on the defendant to plead the defense. That is a question of convenience. Burnet v. Desmornes y Alvarez, 226 U.S. 145, 147, 57 L. ed. 159, 160, 33 Sup. Ct. Rep. 63. But the order of pleading does not always determine the burden of proof. Generally it is not considered necessary for the payee of a promissory note to allege a consideration in declaring upon it, but if there is conflicting evidence, he has the burden of proof. ”

“ The court is of opinion that, in view of the policy of the statute, the relative position of the parties, and the protection necessarily extended to Indians, the burden was on the plaintiff not only to bring his claim within the permission of the statute in fact, as he was warned by its letter that he must, but also to prove that he had done so, in case of dispute. ”