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CHAPTER XVIII.

ON THE BURDEN OF PROOF.

HAVING considered the principles by which evidence is admitted or excluded in courts of justice, we are next to consider the rules by which admissible evidence is applied to prove or disprove the issues in a cause. The first question in this inquiry is—On whom does the onus probandi, or burden of proof, rest, when an issue between two parties is before the court? The answer to this question includes the answer to another point, which causes frequently great controversy, as preliminary to the opening of a case, viz., which party has the privilege, or incurs the duty, of beginning? Practically, no point in the law of evidence involves more subtle principles of law; and none contains more important advantages and disadvantages, according to the circumstances, to the contending parties. Generally in legal as in social controversies, each party desires to have the last word; and as the last speaker in social circles commonly has a great superiority over a previous speaker, in the estimation of his audience, so every litigant or advocate knows from experience the value of having his view of the case the last to vibrate in the ears and memory of a court, and especially of a jury. On the other hand, cases arise frequently where the first word may be more valuable than the last; or where it is possible, by dexterity and tact, to have the double advantage of the first and the last word. Again, a plaintiff, who would otherwise contend inflexibly that it is his privilege to begin, if he should foresee that the defendant must call wit

nesses, and so give the plaintiff a reply, will insist as inflexibly on waiving his privilege, if it should appear that the defendant does not mean to call witnesses, but to rest his case on cross-examination and the eloquence of a last appeal. But it is needless to insist on the importance which necessarily attaches to the order in which parties are allowed to state their cases to the court. It is also impossible to give any precise rule as to the cases in which it may be desirable to claim or to waive this privilege. The course of policy in this respect must depend entirely on the nature of the case; and the cultivated tact of the experienced advocate is the only safe criterion.

The general rule of law has been adopted from the civil law: Ei incumbit probatio qui dicit, non qui negat.1

The issue must be proved by the party who states an affirmative; not by a party who states a negative.

In other words, it is a legal maxim that a negative cannot be proved. But this rule is sublert in substance than it is in form. Thus, a legal affirmative is by no means necessarily a grammatical affirmative; nor is a legal negative always a grammatical negative. A legal affirmative comes often in the shape of a grammatical negative; and a legal negative as often appears as a grammatical affirmative. The solution of the difficulty is to be found only in the logical doctrine of the copula, which equally ignores affirmative and negative propositions as formular conditions. No branch of our law is founded more on the old logic of the schools than that which we are now considering; and the only safe practical rule for deciding whether a pleading is affirmative or negative in character, is to disregard entirely the forms of affirmation and negation, and to ascertain strictly

which is the party who has made a substantial affirmation, which may be, not unlikely, negative in form. The second and most practical branch of the present rule, therefore, is

The issue must be proved by the party who states the affirmative in substance, and not merely the affirmative in form.

It is the general rule that the plaintiff begins. In Mercer v. Whall, Lord Denman said :-"It appears expedient that the judge, the jury, and the defendant himself should know precisely how the claim is shaped. This disclosure may convince the defendant that the defence which he has pleaded cannot be established. On hearing the extent of the demand, the defendant may be induced at once to submit to it rather than persevere. Thus the affair reaches its natural and best conclusion. If this does not occur, the plaintiff by bringing forward his case, points his attention to the proper object of the trial; and enables the defendant to meet it with the full understanding of its nature and character."

In Amos v. Hughes,2 the plaintiff declared on a breach of contract for not embossing calico in a workmanlike manner; the defendant pleaded he did emboss in a workmanlike manner. Here the affirmative was formally with the defendant; but on a question as to the right to begin, Alderson, B., ruled for the plaintiff, and said:

"Questions of this kind are not to be decided by simply ascertaining on which side the affirmative, in point of form lies; the proper test is which party would be successful, if no evidence at all were given. Now here, supposing no evidence to be given on either side, the defendant would be entitled to the verdict; for it is not to be assumed that the work was badly executed; therefore the onus lies with the plaintiff."

1 Mercer v. Whall, 5 Q. B. 447.

2 1 M. & R. 464.

Barber,1

The same learned judge also, in Mills v. stated that the test would likewise be to examine whether, if the particular allegations were struck out of the plea, there would or would not be a defence to the action; and that it is quite immaterial whether the allegation be in the affirmative or negative. The party, who would fail in either event, is the proper party to begin.

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And, generally, since the law will not presume a criminal or civil tort, the party alleging the commission of the act must prove it. Thus, in Amos v. Hughes, the court would not presume the work to have been done in an unworkmanlike manner; and in an action for putting combustible goods on board the plaintiff's ship without due notice, it was held that the plaintiff was bound to prove the negative.2 So, in an action for breach of a covenant or promise to repair, if the plaintiff declare that the premises were not kept in repair, and the defendant pleaded that they were, the plaintiff must begin, and prove the non-repair. So, in an action by executors on a life policy, in which the declaration set out that the assured was not afflicted with rupture or any other disease at the time of assurance; and the plea stated that he was suffering from rupture at the time, and had concealed the fact; the court held, that this was a substantial affirmative on the part of the plaintiffs, and that they should have begun. So, in ejectment by a landlord, on a breach of covenant by defendant to insure premises, the burden of proof lies on the plaintiff, because the object of the action is to defeat the estate granted to a lessee.5

It appears, therefore, from these cases, that, since the law will not presume illegality, the burden of proof rests with the party who affirms the breach of a

1 M. & W. 427.

2 Williams v. East India Company, 3 East, 193.

3 Soward v. Leggatt, 7 C. & P. 613.

Ashby v. Bates, 15 M. & W. 589.

Doe v. Whitehead, 8 A. & E. 571.

public or personal duty. Thus, since bills are presumed to be given for good consideration, it lies on the party who denies the fact to prove the negative. But if the defendant can show that there has been something of fraud in the previous steps of the transfer of the instrument; it throws upon the plaintiff the necessity of showing under what circumstances he became possessed of it. Thus, in an action by indorsee against acceptor, if the defendant plead that the bill was obtained from him by fraud, and that the plaintiff gave no consideration for it, proof of the fraud is held to throw on the plaintiff the onus of showing that he gave consideration for the bill:2 for although a bill is presumed to have been given for a good consideration, yet, as soon as fraud is proved, a contrary presumption arises.3 But a mere absence of consideration will not create any such presumption. On the same principle that where an act is tainted apparently with illegality, the party justifying it must disprove its illegality; a lefendant in libel, who pleads a fair report of proceedings in a court of justice, must prove the correctness of the report.5

There are also cases where the party who charges an illegal act cannot be called on to prove it, on the ground that the charge can be more easily refuted than it can be established. Accordingly it has been said that

In every case the onus probandi lies on the person who wishes to support his case by a particular fact which lies peculiarly within his knowledge, or of which he is reasonably cognizant.6

1 Smith v. Brain, 20 L. J. 201, Q. B.; Hall v. Featherstone, 31 L. T. 119.

2 Harvey v. Towers, 20 L. J. 318, Ex.

3 Berry v. Alderman, 23 L. J. 36, C. P.; Mather v. Lord Maidstone, 26 L. J. 58, C. P.; 28 L. T. Rep. 253.

4 Fitch v. Jones, 24 L. J. 293, Q. B.

5 Lewis v. Levy, 27 L. J. 286, Q. B.

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Holroyd, J.: R. v. Burdett, 4 B. & Ald. 140.