In India, the attestation of the magistrate is sufficient prima facie proof of the examination of the accused, and such attestation shall be admitted without proof of the signature to it, unless the court shall see reason to doubt its genuineness (y).

(y) Act xxv. of 1861, s. 366.

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. 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.

The general rule of the civil law has been adopted by the courts of equity, as well as the courts of law. Ei incumbit probatio qui dicit, non qui negat. The issue must be proved by the party who states an affirmative; not by a party who states a nega

tive. In other words, it is a legal maxim that a negative cannot be proved. But this rule is subtler 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 rule may, therefore, more correctly be laid down that

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 at common law that the plaintiff begins. In Mercer v. Whall (a), 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."

There are two tests for ascertaining on which side the burden of proof lies: first, it lies on the party who would be unsuccessful if no evidence were given on either side (b); secondly, upon the party who (a) 5 Q. B. 447.

(b) Amos v. Hughes, 1 M. & Rob. 464.

would fail if the particular allegation in question were struck out of the pleading (c). When the presumption of law is in favour of one party, it will be incumbent on the other to disprove it. Therefore, since the law will not presume a criminal or civil tort, the party alleging the commission of an act amounting thereto must prove it. Thus, in Amos v. Hughes (d), 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 (e). 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 (ƒ). 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 (g). 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 (h).

(c) Mills v. Barber, 1 M. & W. 427.

(d) 1 M. & Rob. 464.

(e) Williams v. East India Company, 3 East, 193. (f) Soward v. Leggatt, 7 C. & P. 613.

(g) Ashby v. Bates, 15 M. & W. 589.

(h) Doe v. Whitehead, 8 A. & E. 571.

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 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 (i). 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 (k): and the same rule applies in the case of a bill accepted in the name of a firm, when the acceptance is proved to be by one of the partners in fraud of the partnership and contrary to the partnership articles (1): 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 (m). But a mere absence of consideration will not create any such presumption (n). On the same principle that where an act is tainted apparently with illegality, the party justifying it must

(i) Smith v. Braine, 16 Q. B. 244; Hall v. Featherstone, 3 H. & N. 284.

(k) Harvey v. Towers, 6 Ex. 656.

(1) Hogg v. Skeen, 18 C. B. N. S. 426.

(m) Berry v. Alderman, 13 C. B. 674; Mather v. Lord Maidstone, 1 C. B. N. S. 273.

(n) Fitch v. Jones, 5 E. & B. 238.