17th section of the Prevention of Cruelty to and Protection of Children Act, 1894 (1), it is enacted that "where a person is charged with an offence under this Act, or any of the offences mentioned in the schedule to this Act, in respect of a child who is alleged in the charge or indictment to be under any specified age, and the child appears to the court to be under that age, such child shall, for the purposes of this Act, be deemed to be under that age unless the contrary is proved." The Betting and Loans (Infants) Act, 1892 (m), contains important provisions as to the onus probandi on the defendant in prosecutions under sects. 1 and 2. In an action for goods sold and delivered, with a plea of infancy, the onus probandi lies upon the defendant; as the law presumes that, when a man contracts, he is of proper age to contract, until the contrary be shown (). So, negligence in carriers (0), legitimacy of children born in wedlock (p), duration of life (q), and insanity (q), are all issues in which the onus probandi is regulated by the legal presumption as to the fact and the party who disputes the truth of the presumption in the particular case is bound to show that it does not apply (r). Another exception to the above-stated general rule arises from the principle that— In every case the onus probandi lies on the person who wishes to support his case by a particular fact which lies peculiarly within his knowledge, or of which he is reasonably cognizant (s). Thus, generally, in summary proceedings before magistrates, the defendant, who claims a qualification, and not the informer who charges the want of it, must prove the fact; for this is peculiarly within the knowledge of the former («). This principle has been expressly imported into the Game Act, 1 & 2 Will. 4, c. 32, s. 42, which enacts that" it shall not be necessary, in any proceeding under that Act, to negative by evidence any certificate, licence, consent, authority, or other matter of exception or defence; but the party seeking to avail himself of such certificate, licence, &c., shall be bound to prove the same." It seems, however, that where a penal statute contains a certain exception, the onus of showing that the offence is not within the exception is on the informer; for it was held that, on an information before magistrates against a licensed victualler under the 11 & 12 Vict, c. 49, for opening his house on a Sunday, otherwise than for the refreshment of travellers, it was for the complainant to show that the person supplied with refreshment was not a traveller (x). Under the Licensing Act, 1872 (y), the burden of proving that the person supplied was a bona fide traveller, rests on the defendant; but, by the Licensing Act, 1874 (≈), if he fails in such proof, but the justices are satisfied that the defendant truly believed that the purchaser was a bona fide traveller, and further that the defendant took all reasonable precautions to ascertain whether or not the purchaser was such a traveller, the justices shall dismiss the case as against the defendant. The burden of proving that he did not know that a ship, built by order of or on behalf of any foreign state when at war with a friendly state, was intended to be used and employed in the military and naval service of such foreign state, is thrown upon the builder of such ship by the Foreign Enlistment Act, 1870 (a); and by sect. 24 of the Elementary Education Act, 1873 (b), when a child is apparently of the (u) R. v. Turner, 5 M. & S. 206. N. S. 539. (y) 35 & 36 Vict. c. 94. (z) 37 & 38 Vict. c. 49. (a) 33 & 34 Vict. c. 90. age alleged for the purposes of any legal proceedings under that Act, or the Elementary Education Act, 1870 (c), it shall lie on the defendant to prove that the child is not of such age. And by sect. 3 of the Betting and Loans (Infants) Act, 1892 (d), where such a document as mentioned in the previous sections is sent to any person at any place of education, and such person is an infant, the person sending, or causing to be sent, the document, shall be deemed to have known that such person was an infant, unless he proves that he had reasonable ground for believing such person to be of full age. When a plaintiff takes an enquiry as to damages arising from the use of his trade mark by the defendant, the onus of proving some special damage by loss of custom or otherwise rests upon him (e); and in suits to restrain the sale of a patented article, it is incumbent on the plaintiff, not only to prove the sale, but to prove that the article was not made by himself or his agents (ƒ). 66 In practice the plaintiff generally begins, because, to quote the words of Lord Denman in Mercer v. Whall (g) :—“ It appears expedient that the judge, the jury, and the defendant himself, should know precisely how the claim is shaped. This disclosure may convince the defendant that the defence which he has pleaded cannot be established. On hearing the extent of the demand, the defendant may be induced at once to submit to it rather than persevere. Thus the affair reaches its natural and best conclusion. If this does not occur, the plaintiff, by bringing forward his case, points his attention to the proper object of the trial, and enables the defendant to meet it with the full understanding of its nature and character." (c) 33 & 34 Vict. c. 75. (d) 55 Vict. c. 4. (e) Leather Cloth Co. v. Hirschfield, L. R., 1 Eq. 299. (f) Betts v. Willmott, L. R., 6 Ch. 239. (g) 5 Q. B. 447. The strict rule, however, is that The party on whom the onus probandi lies, as developed by the record must begin. But it is considered that the plaintiff must begin in actions of libel, slander, and injuries to the person, and in all other actions in which the plaintiff seeks to recover unliquidated damages, and wherever there are several issues, and the burden of proving any one of them lies on the plaintiff, he is entitled to begin, provided he undertakes to give evidence on such issue. By sub-sect. 7 of sect. 26 of the Patents, Designs and Trade Marks Act, 1883 (), on the hearing of a petition for the revocation of a patent, the defendant is entitled to begin. Order 36, r. 22 of R. S. C., 1883, that when at the trial the defendant appears and the plaintiff does not, the defendant, if he has no counterclaim, shall be entitled to judgment dismissing the action, applies, even when the burden of proof is on the defendant (i). The Merchant Shipping Act, 1894 (k), contains in the 697th section some provisions relative to the burden of proof in proceedings as to offences thereunder. It is as follows:-"Any exception, exemption, proviso, excuse, or qualification, in relation to any offence under this Act, whether it does or does not accompany in the same section the description of the offence, may be proved by the defendant, but need not be specified or negatived in any information or complaint, and, if so specified or negatived, no proof in relation to the matter so specified or negatived shall be required on the part of the informant or complainant." (h) 46 & 47 Vict. c. 57. (k) 57 & 58 Vict. c. 60. (i) Armour v. Bate, (1892) 2 Q. B. 233. CHAPTER XIX. JUDICIAL NOTICE AND THE PROOF OF FOREIGN LAWS. THE courts take judicial notice of numerous facts, which it is therefore unnecessary to prove. Theoretically all facts which are not judicially noticed must be proved; but there is an increasing tendency on the part of judges to impart into cases heard by them their own general knowledge of matters which occur in daily life. They notice all the public statutes of the realm («); their own course of procedure and practice (b); the maritime law of nations (c); a war in which the country is engaged, but not a war between foreign countries (d); the great and privy seals (e); royal proclamations; the preamble of an act (f); the signature of the Clerk of Parliaments (g); and now, by the Documentary Evidence Act, 1845 (h), s. 3, all copies of royal proclamations, purporting to be printed by the Queen's printer, are made evidence thereof in all courts, without proof being given that such copies were so printed. By the Documentary Evidence Act, 1868 (i), this principle was extended to orders or regulations in council, and to proclamations, orders and regulations issued by any of the (a) Bull. N. P. 222. (b) Pugh v. Robinson, 1 T. R. 116. (c) Chandler v. Grieves, 2 H. Bl. 606, n. (d) Dolder v. Huntingfield, 11 Ves. 292. (e) 29 How. St. Tr. 707. (h) 8 & 9 Vict. c. 113. See Appx. |