Page:Harvard Law Review Volume 4.djvu/66

50 so HARVARD LAW REVmW, point of the case, because it is obvious that during the controversy in the litigation there are points at which the onus of proof shifts, and at which the tribunal must say, if the case stopped there, that it must be decided in a particular way. Such being the test, it is not a burden which rests forever on the person o« whom it is first cast, but as soon as he, in his turn, finds evidence which, prima facie, rebuts the evidence against which he is contending, the bur- den shifts until again there is evidence which satisfies the demand. Now, that being so, the question as to onus of proof is only a rule for deciding on whom the obligation rests of going further, if he wishes to win." (^.) From Mr. Justice Stephen's Digest of Evi- dence ^ we may gather that he understands this to be the estab- lished usage in England. And the like is laid down for Scotland.^ (2.) As to the second sense of the term, expressing the duty of the actor to establish the grounds upon which he rests his demand that the court shall move in his behalf, — that is the sense to which, since the year 1832,^ the Supreme Court of Massachu- setts has sought to limit the expression, {a) In I854* it was put thus : " The burden of proof and the weight of evidence are two very different things. The former remains on the party affirming a fact in support of his case, and does not change in any aspect of the cause ; the latter shifts from side to side in the progress of a trial, according to the nature and strength of the proofs offered in support or denial of the main fact to be established. In the case at bar, the averment which the plaintiff was bound to maintain was that the defendant was legally liable for the payment of tolls. In answer to this the defendant did not aver any new and distinct fact, such as payment, accord and satisfaction, or release ; but offered evidence to rebut this alleged legal liability. By so doing he did not assume the burden of proof, which still rested on the plaintiff ; but only sought to rebut the prima facie case which the plaintiff had proved." (p.) In the following passage may be seen an instance of what is not uncommon now-a-days, a recognition of this as one sense of the term, and also of the other. In 1878,^ Lord Justice ' Articles 95. and 96 and the illustrations. 2 Dickson, Evidence in Scotland (2 ed.), ss. 12-16. ^ Powers V, Russell, 13 Pick. 69.
 * Central Bridge Co. v. Butler, 2 Gray, 130.
 * Pickup V. Thames Ins. Co., 3 Q. B. D. p. 600.