PART I. Right to begin. The jurymen when sworn must give an unanimous verdict (a). Right to begin.]—The general rule is, that the party begins on whom the burden of proof lies, so that where any substantial fact must be proved by the plaintiff in order to enable him to succeed in his action, he is entitled to begin, and this rule applies equally in actions of contract and tort (b); with this difference, that whereas in actions of contract the defendant, by admitting the plaintiff's claim, and relying only on some special defence, as infancy, coverture, payment and release, or the like, the onus probandi being shifted, may claim the right to begin; in actions of tort, although the act complained of is admitted by the defendant, still, where the plaintiff seeks to recover substantial damages, he has a right to begin, in order to complete his case, by adducing evidence from which the amount of those damages may be estimated (c). In accordance with this principle, it was held that where in an action on a promissory note, coverture only was pleaded, the defendant had the right to begin; although the plaintiff sought to recover interest upon the note, which was not made payable upon the face of it, there being no necessity for a jury to estimate the amount of damages which were in fact liquidated (d). In ascertaining upon whom the burthen of proof lies, it is not sufficient to look merely to the form of the issue, whether it be affirmative or negative on either side. The substance must be regarded; and if there be a negative averment which is material to the plaintiff's case, some general evidence of it must be adduced (e). A common instance of this occurs when a plaintiff alleges that a house was not in repair (f), or that a horse sold with a warranty was not sound (g); and even where a plaintiff complained that premises had not been insured by the defendant pursuant to a covenant to that effect, it was held necessary for the plaintiff to give some evidence that (a) 9 & 10 Vict. c. 95, ss. 72 and 73, p. 395. As to the grounds of challenges, either to the array or to the poll, see Chitty's Archbold's Practice, pp. 433 et seq., 11th edit. (b) Mercer v. Whall, 5 Q. B. 447; Booth v. Milns, 15 M. & W. 669.. (c) See per Lord Denman, in Mercer v. Whall. (d) Cannam v. Farmer, 3 Exch 698. (e) See per Alderson, B., Geach v. Ingall, 14 M. & W. 98. (f) Soward v. Leggatt, 7 C. & P. 613. (g) Osborn v. Thompson, 2 Mood. & R. 254. they had not been insured, although he had given notice CHAP. VIII. to produce the policy (h). The test most commonly proposed is, to consider for whom the verdict must be, if no evidence at all were given (i); the burthen of proofs then rests upon the other side. The principal exceptions to this rule are: First, where there is a presumption of law in favour of a certain state of things; as that a man is of sound mind, till the contrary is proved; that he will rightly perform the duties which the law casts upon him. Therefore in an action against a carrier for negligence in the conveyance of goods of greater value than the amount to which he had by notice limited his responsibility, it was held that the onus lay upon the plaintiff to prove negligence, and not on the defendant to show reasonable care (k). So, as the absence of fraud is always to be presumed, the holder of a bill of exchange is presumed to have come by it honestly, and is not called upon to prove that he has given consideration until his title is impeached by proof of fraud, duress, that the bill was lost or stolen, or the like (7). Secondly, where it happens that from the nature of the facts in dispute, they lie particularly in the knowledge of one side, very slight evidence, if any, is necessary in order to cast on that side the burthen of proof (m); therefore, in the case of an action for not insuring premises before mentioned, but little evidence would have sufficed to shift the burthen of proof; indeed, in an action against a railway company by a passenger, for negligence, it was held that the plaintiff makes out a prima facie case, by showing that when the accident occurred, the train and railway were exclusively under the direction and control of the defendants (n). If a mistake be made by the judge in deciding upon the right to begin, whereby manifest wrong is done to either side, it will be a ground for a new trial (0). Equitable Defences, and Answers to Defences.]- The Equitable dedefendant or the plaintiff in replevin, may, if he has given fences, and (h) Doe v. Whitehead, 8 A. & E. 571. (i) Amos v. Hughes, 1 Mood. & R. 464; Geach v. Ingall, 14 M. & W. 97. (k) Marsh v. Horne, 5 B. & C. 327. (1) Mills v. Barber, 1 M. & W. 425; Bailey v. Bidwell, 13 M. & W. (m) See per Alderson, B., in Elkin (n) Carpue v. London and Brighton answers to defences. PART I. the requisite notice, at the hearing set up, by way of defence, any facts which, if judgment were given against him, would entitle him to be relieved against the judgment upon equitable grounds. And, in the same way, the plaintiff may set up an equitable answer to any defence made by the defendant (p). But the court is not bound to give effect to any equitable defence or answer, if it appears that the matter sought to be set up cannot be dealt with by the court, in the exercise of its common law jurisdiction, so as to do justice between the parties (q). Those matters only can be admitted as equitable defences in actions at law which, if used in a court of equity, would entitle the party using them to a perpetual and unconditional injunction against the judgment (r). Thus, in an action upon a contract, a mistake which in equity would only entitle the defendant to have the contract reformed, is no defence at law (s); but if the mistake be one which would in equity entitle the defendant to be relieved from the contract altogether, it is otherwise (t). And in the same way, if, in any action, a contract between the parties rendering it inequitable to maintain the action be set up, it is a defence if a court of equity would simply and unconditionally restrain the plaintiff from enforcing his claim (u). It is no defence if a court of equity would require something to be done by the party seeking relief, or impose any conditions upon the relief granted (v). A defendant is not bound to set up an equitable defence in answer to the action; he may take proceedings in equity instead, if he prefers it (r). But if he has applied for an injunction in equity, he cannot rely upon the same facts at (p) 17 & 18 Vict. c. 125, ss. 83, 85, applied to the county courts by order in council, 18th Nov., 1867. The sections referred to give to the plaintiff or defendant in the superior courts the right to plead or reply equitably, and make it a condition of this right that the plea or replication shall commence with certain words. The order in council simply applies these provisions to the county courts, and says that the statutes, rules, orders and forms in use in the county courts shall apply to proceedings thereunder, so far as applicable. These provisions suggest a question, whether it be not necessary to plead equitable defences in the county courts. But, on the whole, it seems clear that they may be raised in the same way as other defences, provided due notice be given under Rule 95. (q) 17 & 18 Vict. c. 125, s. 86. (r) Wodehouse v. Farebrother, 5 E. & B. 276; S. C.,·25 L. J., Q. B. 18. (s) Percy v. Oleaga, 11 Exch. 506. (t) Wake v. Harrop, 6 H. & N. 768; S. C., 30 L. J., Exch. 273. (u) Wood v. Dwarris, 11 Exch. 493; S. C., 25 L. J., Exch. 129. (v) Mines Royal Societies v. Magnay, 10 Exch. 489; S. C., 24 L. J., Exch. 7. (x) Kingsford v. Swinford, 28 L. J., Ch. 413. law (y). And if he has pleaded equitably at law, he can- CHAP. VIII. not go to a court of equity on the same grounds (~). Examination of Witnesses.]—If the ends of justice Examination will be thereby promoted, the judge will, on the applica- of witnesses. tion of either side, order the witnesses on both sides out of court. A witness during his examination in chief, that is by In chief. the party on whose behalf he is summoned, should be asked no questions that do not bear immediately on the matter in dispute; he must not be asked leading questions, that is, questions which suggest what answer is expected, or which are answered by "yes" or "no." This rule does not apply to matter introductory, but must be strictly observed when the material points of the case are reached; nor does it hold when a witness is called to contradict another; he may then be asked, "Did A. B. use such words?" (a). witness. The opinion of a witness, as to a fact in issue, is gene- Opinion of rally inadmissible, as placing the witness in the position of the judge (b); so a witness relating what was said by another, may not be asked, "What did you understand by those words?" unless it is first shown that the words were not used in their ordinary sense (c). Where, however, the question is one as to which no person can be supposed capable of arriving at a correct conclusion, unless he has devoted his particular attention to the subject, as medicine, science, trade, foreign law, or the like, witnesses possessing peculiar skill, from previous study and practice, as doctors, chemists, engineers, merchants or foreign lawyers, may state their opinion (d); but even they are not permitted to state their views on matters of moral or legal obligation, or how persons would probably have been influenced under particular circumstances (e). A witness under examination may refer to an entry Refreshing or memorandum, made by himself at the time, or shortly recollection. after the occurrence, of the fact to which it relates, in order to refresh his memory, though it would not be of itself (y) Schlumberger v. Lister, 29 L. J., Q. B. 157. () Terrell v. Higgs, 1 De G. & J. 388; S. C., 28 L. J., Ch. 837. (a) Edmonds v. Walter, 3 Stark. 8. (b) Carter v. Boehm, 3 Burr. 1905. See also the notes, 1 Smith's L. C. 490 (6th edit.) (c) Daines v. Hartley, 3 Exch. 200; S. C., 12 Jur. 1093. (d) M'Naghten's case, 10 Cl. & Fin. 200; Folker v. Chadd, 8 Doug. 157; Taylor on Evidence, s. 1037 (4th edit.) (e) See per Lord Denman, Campbell v. Rickards, 5 B. & Ad. 846. PART I. Cross-exami nation. Re-examina tion. Witnesses in defence or reply. evidence, as an unstamped receipt (f). Cross-examination.]-As a person called merely to produce a document need not be sworn, the opposite party is not entitled to cross-examine him, even although he is sworn by mistake (i). In cross-examination leading questions may be asked, nor need they be confined to the matter in issue, since any questions may be put which tend to discredit the witness. If, however, the question is irrelevant to the issue, the person putting it must be content with the answer, and cannot call other witnesses to contradict it (k). A witness is not compelled to answer a question which might expose him to prosecution (1). --- Re-examination.] After a witness has been crossexamined, the party who called him has a right to reexamine him, so as to explain what he has stated on crossexamination, although he may have been asked and answered as to facts not admissible in evidence (m), but no new matter must be introduced (n); the object being to explain the cross-examination, not to add facts omitted in the examination in chief. Witnesses in Defence or Reply.]-The plaintiff having closed his case, the defendant calls such witnesses as he thinks fit; and the plaintiff may in reply call witnesses to contradict evidence which has been given by the defendant (o). But it has been held that he cannot, having relied on a primâ facie case in the first instance, call new evidence merely to confirm or add to it (p). This, however, is a matter for the discretion of the judge, and in cases where it seems to him proper that the plaintiff should (f) Maugham v. Hubbard, 8 B. & C. 14. (g) Howard v. Caufield, 5 Dowl. 417. (h) Sinclair v. Stephenson, 1 C. & P. 582. (i) Rush v. Smith, 1 C. M. & R. 94. See note. (k) Att.-Gen. v. Hitchcock, 1 Exch. 91; S. C., 11 Jur. 478. (1) Cates v. Hardacre, 3 Taunt. 424. (m) Blewitt v. Tregonning, 3 A. & E. 554. (n) Prince v. Samo, 7 A. & E. 627. (0) Shaw v. Beck, 8 Exch. 392; Browne v. Murray, Ry. & Moo. 25t. (p) Jacobs v. Tarleton, 11 Q. B. 21; S. C., 12 Jur. 517. |