ing of this principle. Inasmuch as the law will not presume the commission of a crime or tort, the party alleging the commission of an act amounting thereto must prove it; and therefore 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 alleges that the premises were not kept in repair, and the defendant pleads that they are, the plaintiff must begin, and prove the nonrepair (ƒ). 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 the 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). In bankruptcy the burden is on the petitioning creditor

(d) 1 M. & Rob. 464.

(e) Williams v. East India Co., 3 East, 193.
(f) Soward v. Leggatt, 7 C. & P. 613.
(9) Ashby v. Bates, 15 M. & W. 589.

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

to show that the debtor's domicil is in England (i). The owner of the surface of land has a primâ facie right to have it properly supported from below, and the burden of proof is on any person claiming against such right (j).

The maxim omnia præsumuntur ritè esse acta has also considerable effect in shifting the burden of proof. For instance, since Bills of Exchange 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 (k). Thus, in an action by indorsee against acceptor, the defendant pleaded that the bill was obtained from him by fraud, and that the plaintiff gave no consideration for it; the fraud being proved, it was held the onus was thrown on the plaintiff of showing that he gave consideration. for the bill (1). The same rule was applied to the case of a bill accepted in the name of a firm, when the acceptance was proved to be by one of the partners in fraud of the partnership and contrary to the partnership articles (m): for, although a bill is presumed

(i) Ex parte Cunningham, L. R., 13 Q. B. D. 418; 53 L. J., Ch. 1067; 33 W. R. 22.

(j) Love v. Bell, L. R., 9 App. Cas. 286; 53 L. J., Q. B. 257; 32 W. R. 725.

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

to have been given for a good consideration, as soon as fraud is proved, a contrary presumption arises (n); though a mere absence of consideration will not create any such presumption (o). On the principle that, where an act is tainted apparently with illegality, the party justifying it must disprove its illegality, a defendant in libel, who pleads a fair report of proceedings in a court of justice, must prove the correctness of the report (p). In actions for libel where the occasion is a privileged one, the onus is on the plaintiff to prove that the defendant was actuated by malice (q); and in actions for malicious prosecution the onus is of course on the plaintiff, who must show that the proceeding was entirely groundless, and it is not sufficient for him to prove the dismissal of the charge (r). The onus is on those who seek to charge an executor or trustee with a loss arising from the default of an agent where the propriety of employing an agent has been established (s). Where a material representation is made to a person for the purpose of inducing him to enter into a contract and he does enter into it, the burden of proof in an action to enforce the contract by the

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

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

(p) Melissich v. Lloyds, 46 L. J., C. P. 404; 25 W. R. 353.

(4) Clark v. Molyneux, L. R., 3 Q. B. D. 237; 47 L. J., Q. B. 230; 26 W. R. 104.

r) Abrath v. North Eastern Railway Co., L. R., 11 Q. B. D. 440; 52 L. J., Q. B. 620; 32 W. R. 50.

(8) Brier v. Evison, L. R., 26 Ch. D. 238; 33 W. R. 20.

person who made the representation lies on such person (t).

Whenever it is alleged by one party to a deed or his privy that the recitals in such deed are untrue, the burden of proving their falsehood rests upon such party or privy, who is primâ facie bound by such recitals as admissions (u). In patent cases the burden of proof of infringement is ordinarily on the patentee (x); but where a defendant denies the novelty of the plaintiff's invention, the burden of proving the issue thus raised is on him, but the plaintiff can call evidence in reply to conclude the defendant's evidence on this point (y).

When a person, who is able to exercise dominion over another, takes a benefit from him, such person must prove that the transaction was a righteous one (2), and that the gift was intended to be given (a). This is not confined to cases of parent and child, guardian and ward, solicitor and client, and the like, but extends to every case in which two persons are so situated that one may obtain considerable influence over the other (b). If a married woman, who has purported to charge her separate property for money

(t) Redgrave v. Hurd, L. R., 26 Ch. D. 1; 51 L. J., Ch. 113. (u) Melbourne Banking Corporation v. Brougham, L. R., 7 App. Cas. 307; 51 L. J., P. C. 65; 30 W. R. 925.

(x) Neilson v. Betts, L. R., 5 E. & I. 1; 40 L. J., Ch. 317; 19 W. R. 1121.

(y) Penn v. Jack, L. R., 2 Eq. 314; 37 L. J., Ch. 136.

(2) Cooke v. Lamotte, 15 Beav. 240.

(a) Walker v. Smith, 29 Beav. 396; cf. Turner v. Collins, L. R.,

7 Ch. 329; 41 L. J., Ch. 558; 20 W. R. 305.

(b) Cooke v. Lamotte, 15 Beav. 240.

advanced to her husband, alleges undue influence, she must prove it (c). Where a married woman, living apart from her husband, contracts debts, the Court of Chancery will impute to her an intention to deal with her separate property (d), and throw upon her the onus of proving the contrary.

An important general principle was laid down in the opinion of the judges upon the case submitted to them by the House of Lords in the Banbury Peerage case (e) thus, "where there is primâ facie evidence of any right existing in any person, the onus probandi is always upon the person or party calling such right in question." So a court always treats a deed or instrument, which is primâ facie good, as what it purports to be (f), and the onus of proving that it is not what it purports to be, or that it is invalid, rests upon the party impeaching it (g).

In criminal proceedings the burden of proof, as a general rule, rests on the prosecution, on account of the presumption of the innocence of the accused, but in a variety of cases the legislature has thrown the burden of proving authority, consent and lawful excuse on the defendant in criminal proceedings; . thus, when a person is charged with making or possessing coining tools, under 24 & 25 Vict. c. 99,

(c) Field v. Sowle, 4 Russ. 112.

(d) Johnson v. Gallager, 3 D., F. & J. 521; approved by the Judicial Committee of the Privy Council in the London Chartered Bank of Australia v. Lemprière, L. R., 4 P. C. 572.

(e) 1 S. & S. 155.

(f) Jacobs v. Richards, 18 Beav. 303.

(9) Nichol v. Vaughan, 1 C. & F. 49.