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defence, as it would be likely to take the plaintiff by surprise. Rules, 1883, O. xix. r. 15. The objection may, however, arise under the defence of not guilty by statute, e. g., under stat. 11 & 12 Vict. c. 44, s. 10; for by O. xix. r. 12, that defence has the same effect as a plea of not guilty by statute had.

If in a local action the objection of wrong venue is properly taken, the defendant will be entitled to the verdict.

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Where a county has for the purpose of the assizes been divided by Order in Council, under 3 & 4 Will. 4, c. 71, s. 3, each division is, for the pose of venue, to be treated as a separate county. Atkinson v. Hornby, cited 9 Q. B. 978. Lancashire has, under that Act, been divided into three divisions, and Yorkshire and Warwickshire into two each.

By the Local Government Act, 1888 (51 & 52 Vict. c. 41), s. 89 (3), subject to rules of court, "the county of London and the county of Middlesex shall be deemed to be one county for the purpose of all legal proceedings, civil or criminal." The county of London does not include the city of London. See sects. 40 (1, 2, 3), 100.

ONUS PROBANDI.

Generally he who asserts a fact is bound to prove it, if there be no presumption in favour of it; and a negative need not ordinarily be proved. Ross v. Hunter, 4 T. R. 33; Calder v. Rutherford, 3 B. & B. 302. In an action against a solicitor for negligently letting judgment go by default, after the plaintiff has proved the default, it lies on the defendant to show good ground for it, and not on the plaintiff to show that there was a good defence. Godefroy v. Jay, 7 Bing. 413. See a fuller explanation of this rule in Best on Evid. §§ 269 et seq. As to presumptions, vide ante, pp. 33 et seq. It must, however, be borne in mind, that regard must be had to the effect and substance of the issue, and not to its grammatical form. Soward v. Leggatt, 7 C. & P. 613, per Ld. Abinger; Doe d. Worcester School, &c. Trustees v. Rowlands, 9 C. & P. 734, per Coleridge, J.; Belcher v. MIntosh, 8 C. & P. 720, per Alderson, B. And where the assertion of a negative is part of the plaintiff's case he must prove it, as the want of reasonable and probable cause in an action for malicious prosecution. Abrath v. N. E. Ry. Co., 11 Q. B. D. 440, C. A.

Where the presumption is in favour of the affirmative, as where the issue involves a charge of a culpable omission, it is incumbent on the party making the charge to prove it; for the other party shall be presumed innocent until proved to be guilty. See Best on Evid. §§ 314, 346. Thus where, in a suit for tithes in the spiritual court, the defendant pleaded that the plaintiff had not read the Thirty-nine Articles, it was held that the proof of the issue lay on the defendant. Monke v. Butler, 1 Roll. Rep. 83. See also R. v. Hawkins, 10 East, 211. So in an action by the owner of a ship for putting combustibles on board, "without giving due notice thereof," it was held that the plaintiff was bound to prove the want of notice, as the omission to give such notice would have amounted to criminal negligence on the part of the defendant. Williams v. E. India Co., 3 East, 193. So in an action for the price of goods sold in the ordinary course of business, by a company in liquidation, it was held that it lay on the defendant to show that the sale was illegal under the Companies Act, 1862, s. 131, on the ground that it was not required for the beneficial winding-up of the company. Hire Purchase Furnishing Co. v. Richens, 20 Q. B. D. 387, C. A. See further, ante, p. 43. In actions for negligence it lies on the plaintiff to prove it, and not on the defendant to show reasonable care. Marsh v. Horne, 5 B. & C. 327. See further,

post, Action for negligence; Evidence of negligence. So, again, where the issue is as to the legitimacy of a child born in lawful wedlock, it is incumbent on the party asserting the illegitimacy to prove it; Banbury Peerage Case, 1 Sim. & St. 153; and where the issue is on the life of a person who is proved to have been alive within seven years, the party asserting his death must prove it; see Presumptive evidence, ante, pp. 41 et seq.

It has been stated to be a rule that, where the affirmative is peculiarly within the knowledge of the party charged, the presumption of law in favour of innocence is not allowed to operate, but the general rule applies, viz., that he who asserts the affirmative is to prove it, and not he who avers the negative. 3 Russell on Crimes, 4th ed. 277. Thus it has been said that in action on a covenant for not insuring premises against fire, it lies on the defendant to prove that he has insured. Doe d. Bridger v. Whitehead, 8 Ad. & E. 576, per Littledale, J. Accord. Toleman v. Portbury, L. R., 5 Q. B. 294, per Willes, J. So in an action on the game laws, though the plaintiff must aver that the defendant was not duly qualified, yet he cannot be called upon to prove the want of qualification. Spieres v. Parker, 1 T. R. 145; R. v. Turner, 5 M. & S. 206. In an action against a person for practising as an apothecary without having obtained a certificate according to 55 Geo. 3, c. 194, the proof of certificate was held to lie upon the defendant. Apothocaries' Co. v. Bentley, Ry. & M. 159. It has, however, been observed, that the Act itself seems to throw upon him such proof. Elkin v. Janson, 13 M. & W. 662, per Alderson, B. So where, on a conviction for selling ale without a licence, the only evidence given was that the party sold ale, and no proof was offered of his want of a licence; it was held, that the conviction was right; for that the informer was not bound to sustain in evidence the negative averment; and it was said by Abbott, C. J., that the party thus called on to answer sustains no inconvenience from the general rule, for he can immediately produce his licence; whereas, if the case is taken the other way, the informer would be put to considerable inconvenience. R. v. Harrison, Paley on Convictions, 2nd ed., 45, n. From the observations of the court in Doe d. Bridger v. Whitehead, infra, it would seem that the burden of proof in the instances above cited of convictions, &c., lies on the defendant, not because the matter is peculiarly within his knowledge, for that cannot vary the rule of the law, but because the legislature has in those cases, by a general prohibition, made the act of the defendant prima facie unlawful. See also Abrath v. N. E. Ry. Co., 11 Q. B. D. 440, 457, per Bowen, L. J. And in actions for the recovery of possession of land, on the ground of forfeiture, it always rests on the lessor, the plaintiff, to show that the estate which he has granted has been forfeited by the tenant. Toleman v. Portbury, infra. Thus, where the action is brought on a breach of a condition to insure "in some office in or near London," it lies on the plaintiff to prove the omission. Doe d. Bridger v. Whitehead, 8 Ad. & E. 571; see also Price v. Worwood, 4 H. & N. 512; 28 L. J., Ex. 329. So where A. was lessee of a dwelling-house under a condition not to permit a sale by auction on the premises without his lessor's consent in writing, and he sublet to the defendant with the lessor's consent, and subsequently assigned his goods on the premises to X., who there sold them by auction; it was held that, in the absence of evidence that the sale was by A.'s permission, there was no forfeiture, and further, that the onus was thrown on the lessor of showing the nonexistence of a written consent to the sale. Toleman v. Portbury, L. R., 5 Q. B. 288, Ex. Ch.

Under the Rules, 1883, O. xxi. r. 4, ante, p. 76, the plaintiff must prove the damages he alleges he has sustained, unless the defendant

expressly admit them. In an action on a common money bond, the plaintiff need not show that the bond is forfeited; it rests on the defendant to prove payment. Penny v. Foy, 8 B. & C. 11, 13.

The question of the onus of proof is one which may arise in any stage of a trial, and is therefore not necessarily connected with, nor in all cases determined by, the same considerations as the right to begin on trials at Nisi Prius; as to which see further sub tit. Course of Evidence and Practice at Nisi Prius; Right to begin, post, p. 278.

In many cases there are statutable provisions regulating the burden of proof. See them collected in 1 Taylor Evid., § 345; but these chiefly relate to criminal proceedings.

PROOF OF DOCUMENTS.

Under the present head will be considered the mode in which various kinds of documents, usually adduced in evidence, must be proved.

As a general rule, before a document can be proved at a trial it must itself be produced in court, but there are certain documents of a public character which either at common law or by statute are provable by copies without production of the original in court.

Before enumerating the means of proving the several documents under their respective heads, it will be convenient to show here when and how this method of proof is admissible.

PROOF BY COPIES.

The various kinds of copies by which original documents may in general be proved may be classed under four heads, viz.: 1. Exemplifications; 2. Office copies; 3. Examined copies; and 4. Certified copies.

There are certain statutory provisions for proving particular documents; these will be found under the title of the documents to which they respectively apply.

Proof by Exemplification.

Exemplifications are of two kinds :-under the Great Seal, or under the seal of the court in which the record is preserved. An exemplification under the Great Seal may be obtained of any record of the Court of Chancery, or of any record which has been removed thither by certiorari ; but private deeds, so exemplified, will not be admitted in evidence. B. N. P. 227. An exemplification produced from the proper custody, and purporting to exemplify a commission from the crown, is evidence, though the seal has been lost. Beverley, Mayor of v. Craven, 2 M. & Rob. 140. An exemplification under the seal of the Exchequer is evidence of a commission out of that court and of the return thereto, in respect of crown lands. Tooker v. Beaufort, Dk. of, Sayer, 297. So an exemplification of a recovery under the seal of the Great Sessions of Wales. Olive v. Guin, 2 Sid. 145. So of Chester, S. C. Id. And the seals of those courts (it is said) prove themselves. Com. Dig. Testm. (A. 2), ante, p. 80. Exemplification may be given of a lost probate. Shepherd v. Shorthose, Stra. 412.

Proof by Office Copy.

An office copy, that is, a copy made by the officer having custody of the document, always was, in the same court and in the same cause, equivalent to the document of which it was a copy. Per Lord Mansfield in Denn d. Lucas v. Fulford, 2 Burr. 1179; B. N. P. 229. And for this purpose the judge who tried the issue at Nisi Prius was considered as acting under the authority of the court in which the action is pending, and as an emanation of that court. R. v. Jolliffe, 4 T. R. 285, 292. And now by the J. Act, 1873, ss. 29, 30, a judge or commissioner trying causes shall be deemed to constitute a court of the High Court of Justice. copy of depositions in Chancery was evidence in that court, but would not An office be admitted in a court of common law without examination with the original; B. N. P. 229; unless, perhaps, in the case of the trial of an issue out of Chancery. See Highfield v. Peake, M. & M. 109, See, however, Burnand v. Nerot, 1 C. & P. 578, cor. Best, C. J., contra. per Littledale, J. See, further, as to proof of depositions, affidavits, &c., by office copies, post, pp. 114, 115. In an action against the sheriff for a false return, the plaintiff could not use office copies of the writ and return, though the original cause was in the same court, for the cause is a different one. Pitcher v. King, 1 Car. & K. 655.

By Rules 1883, 0. xxxvii. r. 4, "Office copies of all writs, records, pleadings, and documents filed in the High Court of Justice shall be admissible in evidence in all causes and matters, and between all persons or parties to the same extent as the original would be admissible." rule, however, in so far as it alters the rule of evidence above stated, The seems to be ultra vires; see J. Act, 1875, s. 20, post, p. 152. By O. lxi. r. 7, ante, p. 80, office copies are sufficiently authenticated if they appear to be stamped with a seal of the central office (constituted by stat. 42 & 43 Vict. c. 78, ss. 4 et seq.).

Office copies of documents registered or deposited in the central office, e.g., bills of sale, under 41 & 42 Vict. c. 31, s. 16; powers of attorney, under 44 & 45 Vict. c. 41, s. 48, post, p. 137, are made evidence in some cases by statute.

Where a copy is made by a public officer specially intrusted to make copies and to deliver them to the parties as part of their title, they are admissible in evidence without proof of having been actually examined. B. N. P. 229; Appleton v. Braybrook, Ld., 6 M. & S. 34, 38. But a copy of a judgment purporting to have been examined by the clerk of the Treasury (who is not intrusted to make copies), is not admissible without proof of its accuracy. B. N. P. 229. See further, Proof by certified copy, post, p. 98, and Effect of public books and documents, post, pp. 208, et seq.

Proof by Examined Copy.

The contents of a document of a public nature required by law to be kept, may be proved by producing a copy verified by the oath of a witness who has compared it with the original, and will swear that it is complete and correct. What are public documents, in this sense, has never been very accurately defined; but the term seems to include all documents in which the community at large is interested, and which it is desirable not to remove from their place of deposit. Lynch v. Clerke, 3 Salk. 154. The term would clearly include all records of any court whatsoever, and all registers of births, deaths, and marriages; registers having reference to shipping and navigation, to trade, and to the public health; vide post,

VOL. I.

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pp. 124 et seq. The rule applies equally to such public registers kept abroad, as there is a presumption that the foreign authority in whose custody they are, would not allow their removal to this country. R. v. Castro, Q. B., trial at bar, 28th Nov., 1873, ex rel. editoris (post, pp. 129, 130), following Lanesborough's (El. of) Claim, 1 H. L. C. 510, n., and Abbott v. Abbott, 29 L. J., P. M. & A. 57, cited post, p. 128. See Burnaby v. Baillie, 42 Ch. D. 282.

As to proof of depositions and affidavits filed in court, see Proof of depositions and affidavits, post, pp. 113, et seq.

An examined copy of a record or other document must be proved by a witness who has examined it line for line with the original, or who has examined the copy while another person read the original. Reid v. Margison, 1 Camp. 469. And it is not necessary (though in peerage cases a more rigorous rule prevails; Slane Peerage, 5 Cl. & Fin. 42) for the persons examining to exchange papers, and read them alternately. Gyles v. Hill, 1 Camp. 471, n.; Rolf v. Dart, 2 Taunt. 52. The copy must not contain abbreviations which do not occur in the original. R. v. Christian, Car. & M. 388. Where an examined copy is put in evidence some account should be given of the original record; thus, it ought to be shown that the record, from which the copy was taken, was seen in the hands of the proper officer, or was in the proper place for the custody of such records. Adamthwaite v. Synge, 1 Stark. 183; S. C., 4 Camp.

372.

The 14 & 15 Vict. c. 99, s. 14 (post, p. 101), contains provisions for the admissibility of examined copies of public books and documents, and puts examined copies and copies certified under that Act on the same footing. See cases decided thereon, post, pp. 101, 102.

Examined copies of bankers' books may be given in evidence' and may be verified by affidavit. Bankers' Books Evidence Act, 1879; 39 & 40 Vict. c. 11, ss. 3—5, vide post, pp. 122, 123.

Proof by Certified Copy.

By the 1 & 2 Vict. c. 94, s. 12, it is provided "that the Master of the Rolls, or deputy keeper of the records, may allow copies to be made of any records in the custody of the Master of the Rolls, at the request and costs of any person desirous of procuring the same: and any copy so made shall be examined and certified as a true and authentic copy by the deputy keeper of the records, or one of the assistant record keepers," appointed under the Act, "and shall be sealed or stamped with the seal of the Record Office, and delivered to the party for whose use it was made." By sect. 13, "every copy of a record in the custody of the Master of the Rolls, certified as aforesaid, and purporting to be sealed or stamped with the seal of the Record Office, shall be received as evidence in all courts of justice, and before all legal tribunals, and before either House of Parliament, or any committee of either house, without any further or other proof thereof, in every case in which the original record could have been received there as evidence."

The records of all the superior courts, and some public records not of a judicial character, are, after the lapse of a certain time, deposited in the Record Office, in the custody of the Master of the Rolls.

There are some cases in which copies certified by persons not attached to any court, but holding a public position, are made evidence.

The following are amongst the statutes containing provisions making certified copies evidence:-The 41 Geo. 3, c. 109, s. 35; 3 & 4 Will. 4, c. 87, ss. 2 and 4; 8 & 9 Vict. c. 118, s. 146, awards and orders of

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