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. 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

(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.

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 non-repair (ƒ). 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 (g). In bankruptcy the burden is on the petitioning creditor to show that the debtor's domicil is in England (); but if it is not disputed, he need not adduce evidence on the point in the first instance (i). The owner of the surface of land has a prima facie right to have it properly supported from below, and the burden of proof is on any person claiming against such right (k).

(d) 1 M. & Rob. 464.

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

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

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

(i) Ex parte Barnes, L. R., 16 Q. B. D. 522; 54 L. T. 622.

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

Where there is a disputable presumption of law in favour of one party, it will be incumbent on the other to disprove it.

The maxim omnia præsumuntur ritè esse acta has also considerable effect in shifting the burden of proof. Therefore, by the 30th section of the Bills of Exchange Act, 1882 (7), it is provided as follows: "(1) Every party whose signature appears on a bill is primâ facie deemed to have become a party thereto for value; (2) Every holder of a bill is primâ facie deemed to be a holder in due course, but if in an action on a bill it is admitted or proved that the acceptance, issue, or subsequent negotiation of a bill is affected with fraud, duress, or force, and fear or illegality, the burden of proof is shifted, unless and until the holder proves that subsequent to the alleged fraud or illegality value has in good faith been given for the bill." These provisions substantially reproduced the law as it stood in the cases at the time of the passing of the Act. Before the Act it has been held that when a bill sued on was accepted in the name of a firm, but the acceptance was proved to be by one of the partners in fraud of the partnership and contrary to the partnership articles, the onus was on the plaintiff to show that he gave consideration for the bill (m). On the principle that, where an act is tainted apparently with illegality, the party justifying it must disprove its illegality, a defendant

(7) 45 & 46 Vict. c. 61.

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

in libel, who pleads a fair report of proceedings in a court of justice, must prove the correctness of the report (n). 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 (0); 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 (p). 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 (g). Where a false 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 lies on the party who made the representation to show that the other party did not rely on it (").

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 (s). Where a person relies

(n) Melissich v. Lloyds, 46 L. J., C. P. 404; 25 W. R. 353. (0) Clark v. Molyneux, L. R., 3 Q. B. D. 237; 47 L. J., Q. B. 230; 26 W. R. 104.

(p) Abrath v. North Eastern Railway Co., L. R., 11 App. Cas. 247; 55 L. J., Q. B. 457; 55 L. T. 63.

(q) Brier v. Evison, L. R., 26 Ch. D. 238; 33 W. R. 20. (r) Redgrave v. Hurd, L. R., 20 Ch. D. 1; 51 L. J., Ch. 113. (s) Melbourne Banking Corporation v. Brougham, L. R., 7 App. Cas. 307; 51 L. J., P. C. 65; 30 W. R. 925.