Page:Federal Reporter, 1st Series, Volume 5.djvu/132

 120 FEDEEAL BEPOBTEB. �Buch an appearance of ownership, Buch a probability of ownership in the absence of any other facts, that the evidence of those facts satisfies that cardinal rule of the commou law which holds a fact proved as matter of evidence, and for the determination of ail rights -when the preponderance of the evidence is in favor of the fact to be established. Examples of this kind of prima facie proof are the evidence of possession of goods as prima facie proof of ownership, and evidence of possession of a bill of lading by a consignee as prima facie proof of the transfer to him of the shipper's title. But pos- session is not the same thing as title, although it may be suf- ficient evidence of it if nothing else appears. Nor is an apparent transfer of another's title the same thing as a title in the transferee. I think, therefore, it is the right of the respondents, by exception to the libel, to compel such an aver- ment as will show with reasonable certainty that the libel- lants have, as consignees, some actual interest, and the nature of that interest, and without such averment there is nothing for the respondents to answer. A general averment that the libellants have sustained damages in a certain amount, by reason of the loss of the goods by the collision, is clearly not enough. �The distinction between the sufficiency of the proof of facts as evidence, and the sufficiency of the averment of facts as matter of pleading, may be thus stated. Facts, as evidence, are suiEcient when they produce an appearance, or probability of the existence of a right or title, which, by the established rules of evidence, eonstitute priwM facie proof. But the rules of pleading require not the averment of the appearance or probability merely of a right or title, but the averment with reasonable certainty of the actual existence of a right or title. �Exception sustained. ����