Horan v. Weiler & Ellis , 41 Pa. 470 ( 1862 )

The opinion of the court was delivered,

by Thompson, J.

It is enough in this case to say that the defendant’s plea of non assumpsit raised no question of authority in the plaintiffs to maintain their action, and hence they might recover without producing their license, and of course without saying anything about it in their narr. The cases cited by the defendants in error prove the rule that a breach of law is not to be presumed against any one, and that the presumption is to the contrary until proof overcomes it: 1 Greenl. § 411; 1 Barn. & Ald. 463; 10 East 216; 19 Johns. 345; 12 Wheat. 69 : and that he who alleges the contrary must prove it: 3 East 199. The plaintiffs stood upon this presumption, and the defendant took no steps to overcome it. If the defence could avail under any circumstances, it would be in avoidance, and not by denial of liability, and would present an affirmative step to be taken by the defendant. He would be bound both to plead and prove the matter he relied on. Nothing like this was done here, and the judgment must be affirmed.