Page:Harvard Law Review Volume 4.djvu/67

51 THE BURDEN OF PROOF, $1 Brett remarked, with valuable comments on the case of Watson V. Clark ( i Dow, 336), that "The burden of proof upon a plea of unseaworthiness to an action on a policy of marine insur- ance lies upon the defendant, and so far as the pleadings go it never shifts. . . . But when facts are given in evidence, it is often said that certain presumptions, which are really infer- ences of fact, arise and cause the burden of proof to shift ; and so they do as a matter of reasoning, and as a matter of fact. " ^ ( c.) In New York, ^ Church, C. J., for the court, expresses him- self thus : " The burden of maintaining the affirmative of the issue, and properly speaking, the burden of proof remained upon the plaintiff throughout the trial ; but the burden or necessity was cast upon the defendant, to relieve itself from the presump- tion of negligence raised by the plaintiff's evidence. " ( 3. ) A few cases may be added which illustrate the common confusion in the use of the term. ( a.) A doctrine was formerly laid down in England that in prosecutions under the game laws, the defendant had the burden of establishing that he was qualified. This really rested in part upon the construction of the statutes. ^ But it came to be laid down generally, as we read in Greenleaf to-day, * that " where the subject-matter of a negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true unless disproved by that party. " There is great sense in such a doctrine as indicating a duty of producing evi- dence, but little or none as marking a general duty of establishing ; but by reason of the ambiguity of this phrase, the doctrine is afloat in both senses. That it should be limited, as a statement of the common law, to the sense of a duty of giving evidence, is plainly shown by the remarks of Holroyd, J. : " In every case the onus probandi lies on the person who wishes to support his case by a particular fact which lies more peculiarly within his own Abrath v. No. East. Ry. Co., ii Q. B. D. 440 ( 1883 ), and Davey v, Lond. & S. W. Ry. Co., 12 Q. B. D. 70. ^ The King v. Turner, 5 M. & S. 206, 210 ( 1816): "There are, I think, about ten different heads of qualification enumerated in the statutes. . . . The argument really comes to this : that there would be a moral impossibility of ever convicting upon such an information. " Per Lord Ellenborough. See King v. Stone, i East,639 (1801), where the court was divided.
 * Compare the same judge in Anderson v. Morice, L. R. 10 C. P. 58(1874),
 * Caldwell v. New Jersey Co., 47 N. Y. 282, 290.
 * Ev. i. s. 79.