certain amount; and in answer to this evidence the defendant produced an account subsequently rendered by the plaintiff, according to which there appeared to be a balance due on the separate accounts to the defendant; but on the opposite side of the page, there was a statement also of the partnership accounts, on which the balance was in favour of the plaintiff and greatly exceeded the balance on the separate account. It was objected that the plaintiff could not recover beyond his particular; the Court however said, that the defendant himself had given the plaintiff a better case than he was at liberty to make for himself, and that the plaintiff was entitled to a verdict for all that had been proved to be due to him (1). The parties afterwards came to a compromise, and agreed upon the sum to be recovered. It is to be observed, that there were peculiar circumstances in this case; the written paper, which the defendant gave in evidence as the writing of the plaintiff, could only have been admitted as one entire writing, the whole to be taken together, and was not admissible merely in parts; the defendant could not use in evidence the separate account of the plaintiff without admitting also the partnership account, which was written by him on the same paper, since the one part might have explained or referred to the other, and if the statement of a party is given in evidence against himself, the whole of the statement ought to be received, though all its parts may not deserve the same credit. But it appears to be too much to infer generally from the authority of this case, that, because the evidence adduced by the defendant shews, there were other items which might have been included in the bill of particulars, the plaintiffs ought therefore to recover on these items, as well as upon those which are specifically mentioned. The case in question must be considered as a particular exception, and not as establishing a rule of so wide and general a nature. The plaintiff, it is presumed, can neither cross examine the defendant's

witnesses to any claim, which he has not comprehended in his particular of demand, nor can he at the trial avail himself of any such claim, though disclosed by the witnesses on the other side in their examination in chief.

SECT. IV.

The Affirmative of the Issue is to be proved.

THE next rule is, 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." Thus, in an action for a loss 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 (1). In an action on the game laws, though the plaintiff must aver, in order to bring the defendant within the act, that he was not duly qualified; yet it is not necessary to disprove his qualifications; but it will be for the defendant, if he can, to prove himself quaJified (2). And there appears to be no good reason, why the same rule of evidence should not be adopted in proceedings on convictions before magistrates, as well as in an action for penalties. A distinction has, however, been made; and some of the Judges have been of opinion, that, on such proceedings, some evidence of the want of qualification ought to be produced (3). But it is admitted, that

(1) Ross v. Hunter, 4 T. R. 33, 38. (2) By Lord Mansfield, in Spieres v. Parker, 1 T. R. 144; Buller, J. in 1 T. R. 649; Heath, J. in Jelfs v. Ballard, Bos. Pul. 468; Chambre, J. in Frontine v. Frost, 2 Bos. Pul. 307; adm. per Cur. in R. v. Stone, I East, 650.

(3) R. v. Jarvis, 1 Burr. 148, 153; 1 East, 643, (c) S. C. By Lord Kenyon and Grose, J. in R. v. Stone, 1 East, 649; and Chambre, J. in 3 Bos. Pul. 307. And see R. v. Marriott, I Str. 66; Bluet q. t. v. Needs, Com. Rep. 522, 5.-Contrà Lawrence, J. and Le Blanc, J. 1 East, 653.

only

only general evidence of this negative fact can be necessary. (1)

Where one party charges another with a culpable omission or breach of duty, the general rule above laid down does not apply. 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. Thus, in a suit for tithes in the Spiritual Court, where the defendant pleaded, that the plaintiff had not read the thirty-nine articles, the Court put 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 (2). So, in an action by the owner of a ship against the defendants, for putting on board a quantity of combustible and dangerous articles "without giving due notice thereof," the Court held, that it lay upon the plaintiff to prove this negative averment (3). So on an indictment 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, the negative ought to be proved, that the owner had not given his consent. (4)

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, of which he is supposed to be cognizant. Thus, 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 shew, that the notes came to his hands before that time (5). So where the question is on

So

the legitimacy 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): But if there has been a divorce à mensá et thoro, the presumption is, that a child born afterwards, (as a year after the sentence, &c.) 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 access. where the issue is upon the life or death of a person, the proof of the fact lies upon the party who asserts the death, for the presumption is that the party continues alive, until the contrary be proved (3). But where no account can be given of the person, this presumption of the duration of life ceases at the expiration of seven years from the time when he was last known to be living (4); a period, which has been fixed, from analogy to the statute of bigamy (5), and the statute concerning leases determinable on lives (6)*. Thus in the case of Doe v. Jesson, 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 presumed 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

(1) See ante, p. 112.

(2) Parishes of St. George and St. Margaret, 1 Salk. 123. See ante, p.113. (3) Wilson v. Hodges, 2 East, 312.

(4) Doe dem. George v. Jesson, 6 East, 80, 85.

(5) St. 1 J. 1. c. II, 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 him 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 knowing," &c.) relates only to the 2d 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. 88. 1 Hale P. C. 692. 4 Bl. Com. 164.

of

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.

Although, in general, it is necessary for a party, who brings an action, to prove all the material facts which he alleges in support of his claim, yet where the defendant pleads a fact within his own knowledge in discharge of himself, and the plaintiff still insists on the defendant's liability, alleging the same fact in his replication, there the burthen of the proof lies on the defendant, not upon the plaintiff. Thus in an action of assumpsit, where the defendant pleaded infancy, and the plaintiff replied, that “the defendant, after he had attained his full age, ratified and confirmed the promise and undertaking," the Court held, that the mere proof of a promise to pay was sufficient on the part of the plaintiff; and that it was for the defendant to prove the personal incapacity to contract, on which he grounded his defence, and which lay so peculiarly within his own knowledge. (2).

SECT. V.

The Substance only of the Issue need be proved.

THE next rule to be considered is, that, on any issue, it will be sufficient to prove the substance of the issue. Thus where the defendant pleaded payment of the principal sum and of all interest due, and it appeared in evidence that a gross sum was paid, not amounting to the full interest, but accepted by the plaintiff as full payment, the Lord Ch. Justice Raymond held the proof to be sufficient (3).

So,

(2) Borthwick v. Carruthers, 1 T. R. (3) Price v. Brown, 2 Str. 690.