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2. Evidence not admissible in the first instance may be come so by matter subse
and evidence not receivable either in proof of the facts in dispute or to test the credit of witnesses, &c., may be important as shewing the amount of damage sustained by a plaintiff, etc. 2. Evidence not admissible in the first instance may become so by matter subsequent. Thus, in a suit between A. and B. the acts or declarations of C. are primâ facie not evidence against B., and ought to be rejected; but if it be shewn that C. was the lawfully constituted agent of B., either generally, or with respect to the subject matter of the suit, his acts or declarations become evidence against his principal. So a litigant party may, by his mode of conducting his case, render that evidence for his adversary which otherwise would not be so. Thus, although a man's own verbal or written statement cannot be used as evidence for him, yet if his adversary put such a statement in evidence against him, he is entitled to have the whole read, and the jury may estimate the probability of any 3. Evidence re- part of it which makes in his favour. 3. Evidence may be receivable to prove a subalternate principal fact, which nate principal might not be receivable to prove the immediate fact in issue. This is of course subject to the rule requiring the best evidence; for the connection between the subalternate principal fact and the ultimate evidentiary fact must be as open, visible, and unconjectural in its nature as that between the subalternate principal fact and the fact directly in issue. In all cases, as has been well observed, the ultimate presumption must be connected either mediately or immediately with facts established by proof (a).
(a) 2 Ev. Poth. 332.
THE BURDEn of proof, or ONUS PROBANDI.
proof, or onus probandi.
§ 259. THE burden of proof, or onus probandi, is The burden of governed by certain rules, having their foundation in principles of natural reason, to which an artificial weight is superadded by the reason and policy of law (a); and in order to form clear notions on this subject, the best course will be to consider it, first, in the abstract, and afterwards as connected with jurisprudence.
which it is governed.
§ 260. Every controversy ultimately resolves itself Natural prininto this, that certain facts or propositions are asserted by one of the disputant parties, which are denied, or at least not admitted, by the other. Now, where there are no antecedent grounds for supposing the assertion of the one party more probable than the denial of the other, and the means of proof are equally accessible to both, the party who asserts a fact or proposition must prove his assertion, the onus probandi, or burden of proof, lies upon him; and the party who denies that fact or proposition need not give any reasons or evidence to shew the contrary, until his adversary has at least laid some probable grounds for belief of it. The reason is obvious. On all matters which are neither the subject of intuitive or sensitive knowledge, nor rendered probable by experience, the mind suspends its assent until proof of them is adduced; and where effective proofs are in the power of a party who refuses or neglects to produce them, that naturally raises a presumption that those proofs, if produced, would make against him.
(a) Introd. sect. 2, § 42.
Legal rules affecting.
§ 261. One of the causes, as shewn in the Introduction to this work, which renders artificial rules of evidence indispensable to municipal law, is the necessity for speedy action in tribunals (b). In order to do complete justice tribunals must be supplied by law with rules which shall enable them to dispose, one way or the other, of all questions which come before them, whatever the nature of the inquiry, or however difficult, or even impossible, it may be to get at the real truth. And as the law takes nature for its model, and works on her basis as far as possible, the best mode of effecting this object is to attach an artificial weight to the natural rules by which the onus probandi is governed, and enforce its order more strictly than is observed in other controversies. Courts of justice are not established for the decision of abstract questions-"Interest reipublicæ ut sit finis litium (c);"—and therefore the man who brings another before a judicial tribunal must rely on the strength of his own right and the clearness of his own proofs, and not on the want of right or weakness of proof in his adversary. Hence the great principle which has been variously expressed by the maxims, "Actori incumbit onus probandi (d);" "Actori incumbit probatio (e);" "Actore non probante reus absolvitur (f);" "Semper necessitas probandi incumbit illi qui agit(g);" "Actore non probante; qui convenitur, etsi nihil ipse præstat, obtinebit (h)," &c. The plaintiff is bound in the first instance to shew at least a primâ facie case, and if he leaves it imperfect the court will not assist him: "Melior est conditio rei quàm actoris (i);""Potior est conditio defendentis (k);" "Favorabiliores rei potiùs quàm actores habentur (1);" "Cum
(b) Introd. sect. 2, §§ 41, 42.
(e) Hob. 103.
(f) Bonnier,Traité des Preuves, §§ 39 & 42.
(g) Inst. lib. 2, tit. 20, § 4; Dig. lib. 22, tit. 3, 1. 21.
(h) Cod. lib. 2, tit. 1, 1. 4.
(k) Cowp. 343; 8 Wheat. 195.
sunt partium jura obscura, reo favendum est potiùs quàm actori (m);"" In dubio secundùm reum potiùs quàm secundùm actorem litem dari oportet (n);" "Semper in obscuris quod minimum est sequimur (o);" "In obscuris minimum est sequendum (p)," &c. Thus where in an action for goods sold and delivered by a liquor merchant, the only evidence was that several bottles of liquor were delivered at the defendant's house, Lord Ellenborough directed the jury to presume that they were filled with the cheapest liquor in which the plaintiff dealt (q). So where on an action for money lent, it appeared in evidence that the defendant having asked the plaintiff for some money the plaintiff delivered to him a bank note, the amount of which could not be proved, it was held by the Court of Exchequer that the jury were rightly directed to presume it to have been for the note of smallest amount in circulation (r). When however the defendant, or either litigant party, instead of denying what is alleged against him, relies on some new matter which if true is an answer to it, the burden of proof changes sides: "Agere is videtur, qui exceptione utitur, nam reus in exceptione actor est (s;" " In exceptionibus dicendum est reum partibus actoris fungi oportere (t);" "Reus excipiendo fit actor (u);" "In genere quicunque aliquid dicit, sive actor sive reus, necesse est ut probet (x)." It is in this sense that the maxim, "Semper præsumitur pro negante(y)," and the expression that the law presumes against the plaintiff's demand (2), are to
(m) Sext. Decretal. lib. 5, tit. 12, De Regulis Juris, Reg. 11. (n) Heinec. ad Pand. Pars 4, § 144.
(0) Dig. lib. 50, tit. 17, l. 9; Poth. Obl. § 711.
(p) Sext. Decretal. lib. 5, tit. 12, De Reg. Jur. Reg. 30.
(q) Clunnes v. Pezzey, 1 Camp. 8.
(r) Lawton v. Sweeny, 8 Jur. 964.
(s) Dig. lib. 44, tit. 1, l. 1. (t) Dig. lib. 22, tit. 3, l. 19. (u) Bonnier, Traité des Preuves, §§ 152, 320.
(a) Matthæus.de Prob. c. 8, n 4. (y) 10 Cl. & F. 534.
(z) Clunnes v.Pezzey, 1Camp.8.
Test for determining the burden of proof.
be understood. And although the burden of proof must, in the first instance, be determined by the issues as they appear on the pleadings, or whatever according to the practice of the court and nature of the case is analogous to pleadings, it may, and frequently does, shift in the course of a trial. On an indictment for libel, for instance, to which the defendant pleads simply not guilty, the onus probandi lies of course, in the first instance, on the prosecutor; but on proof that the document, the subject of the indictment, contained matter libellous per se, and was published by the defendant's shewing it to A. B., the law would presume the publication malicious, and cast on the defendant the onus of rebutting that presumption. If, then, he were to prove in his defence that it was shewn to A. B. under such circumstances as to render it primâ facie a confidential communication allowed by law, the burden of proof would again change sides, and it would lie on the prosecutor to prove malice in fact, &c.
§ 262. In order to determine on which of two litigant parties the burden of proof lies, the following test was suggested, we believe for the first time, by Alderson, B., in the case of Amos v. Hughes (a), in 1835, i. e. “which party would be successful if no evidence at all were given;" and he not only applied that test in that case, as also in some subsequent ones (b), but it has been adopted by other judges at nisi prius (c), and frequently recognized by the courts in banc (d). As, however, the question of the burden of proof may present itself at any moment during a trial, the rule ought in strict accuracy to be ex
(u) 1 Moo. & R. 464. See also the observations of the same judge in Huckman v. Fernie, 3 M. & W. 505, and Mills v. Barber, 1 M. & W. 425.
(b) Belcher v. M'Intosh, 8 C. & P. 720; Ridgway v. Ewbank, 2 Moo. & R. 218; Geach v. Ingall, 14 M. & W. 100.
(c) Osborn v. Thompson, 2 Moo. & R. 256; Doe d. Worcester v. Rowlands, 9 C. & P. 735.
(d) Leete v. The Gresham Life Insurance Society, 15 Jurist, 1161; see the judgment in Doe d. Caldecott v. Johnson, 7 Man. & Gr. 1047.