Action for loss by barratry.

Plaintiff's en

SECT. IV.

The Affirmative of the Issue to be proved.

THERE are several general rules, of great use in ascertaining whether the plaintiff or defendant will have to prove the issue on the record. One of the most useful of these is the rule, which has been taken as the subject of the present section, namely, that the point in issue is to be proved by the party who asserts the affirmative; according to the maxim of the civil law." Ei incumbit probatio qui dicit, non qui negat." (1) (k) A few instances will be sufficient to illustrate this rule.

In an action for a loss, occasioned by barratry in the master of a ship, where it was objected by the defendant, that the plaintiff ought to prove, that the master was not also the owner or freighter, and that he did not act under the direction of the person who was, (in which case barratry could not be committed,) the Court held, that, if the master was owner or freighter, or acted under the direction of the owner, the burthen of proving that fact lay on the defendant. (2) "It was not incumbent on the plaintiff," said Mr. Justice Buller, "to prove that the captain was not the owner, for that would be calling on him to prove a negative; and if the captain were not the owner, it is immaterial who was; proof of that fact, which operates in discharge of the other party, lies upon him." (1)

But although it may lie on the defendant to prove an affirmatire case to be tive, yet the plaintiff, if he has notice of the defence, cannot proved. defer the concluding of his entire case until the affirmative is first established. Thus, if the plaintiff bring an action against the defendant for some act done by him, and the defendant plead the general issue, and in bar of the action plead further an illegal act done by the plaintiff, such as would justify the defendant in doing the act which is the subject of the suit, here the plaintiff will have to prove the whole of his case in the first instance; he ought not only to prove his right of action, but also negative the act imputed to him by the defendant's plea. Thus, in the case of Rees v. Smith, (3) which was an action of trespass for breaking into the plaintiff's house, and seizing his goods,

Trespass.

(1) Justin. Pand. Lib. 22, Tit. 3. De Probationibus, Art. 1, 2.

(2) Ross v. Hunter, 4 T. R. 33, 38. (3) 2 Starkie, N. P. C. 30.

and the defendant pleaded, besides the general issue, a fraudulent removal of the goods to avoid a distress for rent, the plaintiff at first only proved the trespass, the defendant then gave evidence in support of his plea, after which the plaintiff's counsel offered general evidence, to negative the supposition of a fraudulent removal, but Lord Ellenborough rejected the evidence. "The general rule," he said "is, that when the defence is known, by pleading, or by means of notice, the counsel for the plaintiff is bound to open the whole case in chief, and cannot proceed in parts. If," added Lord Ellenborough, "any one fact be adduced by the defendant, to which an answer can be given, the plaintiff must have an opportunity given for so doing: but this must be understood of a specific fact: he cannot go into general evidence in reply to the defendant's case. There is no instance, in which the plaintiff is entitled to go into half his case, and reserve the remainder.”(m)

And where one party charges another with a culpable omission Charge of or breach of duty, the general rule, above laid down, does not apbreach of duty. ply. In such a case, the person who makes the charge is bound to prove it, though it may involve a negative; for it is one of the first principles of justice, not to presume that a person has acted illegally, till the contrary is proved." (n) Thus, in a suit for Reading thirty tithes in the Spiritual Court, where the defendant pleaded, that the nine articles. plaintiff had not read the thirty-nine articles, the Court called on the defendant to prove the fact, though a negative: upon which, he moved the Court of King's Bench for a prohibition; but it was refused, for the reason already stated. (1) In an action by the owner Patting on of a ship against the defendants, for putting on board a quantity of board comcombustible and dangerous articles, "without giving due notice thereof," the Court held, that it lay upon the plaintiff to prove this negative averment. (2) (0) In an action, for the recovery of penalties, under the hawkers' and pedlers' act, (3) against a person charged with having sold goods by auction, in a place in which he was

Bull. N. P. (298.) Rex v. Combs,
Comb. 57. Gilb. Ev. 132.

(1) Monke v. Butler, 1 Roll. Rep. 83, cited by Lord Ellenborough, 3 East, 199. Powell V. Millbank, 2 Black. Rep. 851, S. P. 3 Wils. 355, S. C. See also Lord Halifax's case, 10 East, 211.

(2) Williams v. East India Comp. 3 East, 193, 199. Rex v. Hawkins,

(3) St. 29 G. 3, c. 26, s. 4.

(m) See Note 370, p. 479. (n) See Note 371, p. 483. (0) See Note 372, p. 486,

bustibles.

Covenant to repair.

Prosecution for coursing without consent.

not a householder, some proof of this negative, namely, of the defendant not being a householder in the place, would be necessary on the part of the plaintiff. (p) And in an action of covenant against a lessee, where the breach is, in the language of the covenant, that the defendant did not leave the premises well repaired at the end of the term, the proof of the breach lies upon the plaintiff'; this breach, though in terms it involves a negative, admits of as easy proof, as if it had been expressed in the affirmative. (q)

On the trial of an indictinent on the statute 42 G. 3, c. 107, s. 1, which makes it felony to course deer on an inclosed ground "without the consent of the owner of the deer," it ought to appear from the evidence produced on the part of the prosecution, that the owner had not given his consent. According to the report of a late case, (1) it seems to have been thought necessary to call the owner of the deer, for the purpose of disproving his consent; and the owner not being called, the jury were directed to find a verdict of acquittal. The particular circumstances of that case are not stated in the report; and it is not easy to discover upon what principle such evidence was held to be indispensable. If the circumstances were of such a nature as to raise a reasonable presumption, that what had been done had not been done illegally (which, however, it is difficult to conceive,) then, doubtless, the direct evidence of the owner would be necessary to repel that presumption, and to establish the charge against the prisoner. But, as a general proposition, it may be safely laid down, that the non-consent of the owner may be properly inferred from the conduct of the prisoner, and the circumstances under which the act was done, such as the secrecy of the proceedings, the attempt to conceal, the disguise of the prisoner, or his resistance, or any other circumstance of guilt; and that the evidence of the owner, to negative the supposition of his consent, is not more strictly necessary to this prosecution than on a charge of larceny, in which it is an essential ingredient, that the goods should have been taken against the owner's consent; and yet the owner is never questioned as to that point, though he is generally called to prove the property. (r)

(1) R. v. Rogers, 2 Campb. 654, by Mr. Justice Lawrence. See R. v.

Mallinson, 2 Burr. 679. R. v. Corden, 4 Burr. 2279.

of law.

Where the presumption of law is in favor of the defendant's plea, Presumption there it will be incumbent on the plaintiff to disprove the plea, though in so doing he may have to prove a negative. (s) As, in an Bond twenty action on a bond, if the defendant plead payment, and the bond years old. appears to have been outstanding for twenty years, the law presumes that the principle debt has been discharged; this legal presumption of itself affords a defence, in support of the plea; and, to repel the presumption, it will be necessary for the plaintiff to produce evidence, from which the contrary presumption of non-payment may be inferred; such as evidence of payment of interest, or of an admission of the debt. (1) Where the question is on the le- Legitimacy. gitimacy of a child, if a legal marriage is proved, the legitimacy is presumed, and the party, who asserts the illegitimacy, ought to prove it: (1)(u) but if there has been a divorce a mensa et thoro, the presumption is, that a child born afterwards (that is, beyond the time of gestation,) is illegitimate; (2) it will be sufficient, therefore, in such a case, to prove the divorce; and this will call upon the opposite party to establish the legitimacy by proof of ac

ed, after what

Where the issue is upon the life or death of a person, the proof Death presumof the fact lies upon the party who asserts the death, for the pre-ed, a sumption is, that the party continues alive, until the contrary be proved. (3) (w) But where no account can be given of the person 2 Bay, 476. this presumption of the duration of life ceases at the expiration

of
seven years from the time when he was last known to be liv-
ing; (4)(x) a period, which has been fixed, from analogy to the
statute of bigamy, (5) and the statute concerning leases determina-
ble on lives. (6)* Thus, in the before-cited case of Doe v. Jesson,

(1) See ante, p. 158.

(2) Parishes of St. George and St. Margaret, 1 Salk. 123.

(3) Throgmorton v. Walton, 2 Roll. Rep. 461. Wilson v. Hodges, 2 East, 312.

V.

(4) Doe, dem. George, v. Jesson, 6
East, 80, 85. Doe, dem. Lloyd
Deakin, 4 Barn. & Ald. 434. Roe v.
Hasland, 1 Black. 404.

(5) St. J. J. 1, c. 11, s. 2.
(6) St. 19 C. 2, c. 6.

The statute of bigamy contains a proviso, that " it shall not extend to any person, whose husband or wife shall be continually remaining beyond the seas by the space of seven years together, or whose husband or wife shall absent himself or herself, the one from the other, by the space of seven years together within the king's dominions, the one of them not knowing the other to be living within that time." It has been held, that the last clause (namely," the one of them not know

(s) See Note 376, p. 487. (t) See Note 377, p. 488. (v) Bee Note 379, p. 488. (w) See Note 380, p. 489.

(u) See Note 378, p. 488.
(x) See Note 381, p. 489.

ture.

where it was proved, that a person went to sea at a particular time, which was the last account given of him, his death was prePlea of cover- sumed at the end of seven years from that time. And therefore, where the defendant pleaded coverture in bar of an action of assumpsit, and proved her marriage, and that her husband went abroad twelve years before the commencement of the action, this was held not to be sufficient, and the defendant was required to prove that her husband was alive within seven years; (1) without such additional proof, the jury might have presumed the death of the husband at the time of the promise, which would have been against the defendant's plea. (y)

Fact peculiarly within the knowledge of a party.

Receipt of

notes.

It is a general rule of evidence, that the burthen of proof lies on the person, who has to support his case by proof of a fact which lies more peculiarly within his own knowledge, or of which he is supposed to be cognizant. (2) In an action by the assignees of a bankrupt, where the defendant, under a notice of set-off, gave in evidence promissory notes dated before the bankruptcy, the Court held that he ought also to show, that the notes came to his hands before that time. (3) In an action on the game laws, though the plaintiff must aver, in order to bring the Qualification. defendant within the act, that he was not duly qualified; yet it is not not necessary to disprove his qualifications; but it will be for the defendant, if he can, to prove himself qualified. (4) And it has lately been determined by the Court of King's Bench, that the same rule of evidence applics as well to proceedings on in

(1) Hopewell v. De Pinna, 2 Camp. 13. Doe, dem. Banning, v. Griffin, 15 East, 293, stated infra.

(2) 4 Barn. & Ald. 140, vid. infra, sect. 6. 9 Price, 257. 5 Maule & Selw. 211. 1 Barn. & Cress. 150. 3 Barn. & Cress. 242.

(3) Dickson v. Evans, 1 T. R. 57. See other examples in criminal cases, in 2 East, P. C. 782.

(4) By Lord Mansfield, in Spieres v. Parker, i T. R. 144. Buller, J. in 1 T. R. 649. Heath, J. in Jelfs v. Ballard, 1 Boss. & Pull. 468. Chambre, J. in Frontine v. Frost, 2 Bos & Pull. 307, adm. per Cur. in R. v. Stone, 1 East,

650.

ing," &c.) relates only to the second clause, and not to the first respecting commorancy beyond the seas: and, consequently, that the second marriage is not felonious, where either of the parties is beyond the seas for seven years, though the party in this country had notice that the other was living. 3 Inst. 8S. 1 Hal. P. C. 692. 4 Bl. Com. 164.