kept with the depositions of the witnesses, and shall be transmitted with them as hereinafter mentioned; and afterwards, upon the trial of the said accused person, the same may, if necessary, be given in evidence against him without further proof thereof, unless it shall be proved that the justice or justices purporting to sign the same did not in fact sign the same; provided always, that the said justice or justices, before such accused person shall make any statement, shall state to him, and give him clearly to understand that he has nothing to hope from any promise of favour, and nothing to fear from any threat which may have been holden out to him to induce him to any admission or confession of his guilt; but whatever he shall then say may be given in evidence against him upon his trial, notwithstanding such promise or threat; provided, nevertheless, that nothing herein enacted or contained shall prevent the prosecutor in any case from giving in evidence any admission or confession, or other statement of the person accused or charged." A voluntary statement by a prisoner before the depositions are complete, and before the statutory caution has been given, is admissible (n).

When a confession is inadmissible, every statement or act, which, presumably and reasonably, flows from it will be also inadmissible in evidence; for it is held that the influence which produces a groundless confession, may also produce groundless con

(n) R. v. Stripp, Dears. 648; R. v. Sansome, 1 Den. 545.

duct (o). Although a confession may be inadmissible, a witness may be asked whether, in consequence of something which the prisoner had said, he has made any discovery of other facts which bear on the case (p).

If two persons be charged jointly, the confession of one will not be evidence against the other, for a prisoner is called upon to answer depositions on oath, but not to make any answer to the statement of another prisoner (q); but the record of the conviction of a principal in a felony, who has pleaded guilty, is evidence against an accessory of the commission of the principal felony (). On trials for conspiracy, where the conspiracy has been proved, the acts of one conspirator are evidence against the other conspirators. Thus it was held in R. v. Hardy (s), that the statements in the letters addressed by one conspirator to another, are evidence against the latter.

Principals and agents are not criminally liable, as such, for their respective acts, and, therefore, cannot be affected by each other's confessions. Thus, on Lord Melville's trial for embezzlement, it was held, that the admissions of his agent that the latter had received money on account of his principal only affected the principal with a civil liability, and that

(0) R. v. Jenkins, R. & R. 492.

(p) R. v. Gould, 9 C. & P. 364.

(7) Per Patteson, J., R. v. Swinnerton, C. & M. 593; R. v. Appleby, 3 Stark. 33.

(r) R. v. Blick, 4 C. & P. 377.

(*) 24 How. St. Tr. 475.

it could by no possibility convict him of a crime (t). There is an exception to this rule in the case of a libel published in a newspaper, where the proprietor is primâ facie liable for the insertion by his agent (u).

A prisoner may be convicted on proof of a confession without other evidence; but judges are unwilling to direct a conviction in such cases. Instances are common in which prisoners, under the influence of a morbid sentiment, have confessed crimes which they have never committed; and there are others in which the confession seems to have been prompted by the full, but unfounded, belief in the confessing party, that he had committed the crime. It has been said that "too great weight ought not to be attached to evidence of what a party has been supposed to have said; as it very frequently happens, not only that the witness has misunderstood what the party has said, but that by unintentionally altering a few of the expressions really used, he gives an effect to the statement completely at variance with what the party really did say (x).

A confession made before magistrates must be proved at the trial by the depositions, unless it be clearly shown that the statement was not taken down at the time.

(t) 29 How. St. Tr. 764; Sup. p. 280.

(u) R. v. Gutch, 1 M. & M. 433.

(x) Per Parke, B., Earle v. Picken, 5 C. & P. 542, n.

CHAPTER XVIII.

THE BURDEN OF PROOF.

THE next point for consideration is, what are 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 a tribunal? The answer to this question includes the answer to another, 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 involves 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 in England by courts of equity, as well as 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 negative. In other words, it is a legal maxim that a negative cannot be proved. This rule is, however, subtler in substance than 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 often comes in the shape of a grammatical negative, and a legal negative 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.

There are two tests for ascertaining on which side the burden of proof lies: first, it lies upon the party who would be unsuccessful if no evidence were given on either side (a); secondly, it lies upon the party who would fail if the particular allegation in question were struck out of the pleading (6). We may here note that Erle, J., said in Wheelton v. Hardisty (c); "Modern cases have established, that where the party on whom the onus lies of proving the allegation gives evidence as consistent with one view of the case as the other, he fails in his proof." The general rule is, however, subject to exceptions. Thus

Where there is a disputable presumption

of law in favour of one party, it will be incumbent on the other to disprove it. The following will serve as instances of the work

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

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

(c) 8 E. & B. 263; cf. Cotton v. Wood, 8 C. B., N. S. 568.