Page:Harvard Law Review Volume 4.djvu/84

68 68 HARVARD LAW REVIEW. the law on the subject. " But in 1842^ the opinion of the court distinctly lays down the other doctrine : " The [ auditor's] report being made evidence by the statute, it necessarily shifted the burden of proof; for being /n;;2^/<2^/^ evidence, it becomes con- clusive where it is not contradicted or controlled. " In 1 844 (Taunton Iron Co. V. Richmond, 8 Met. 434 ) the reporter, afterwards Mr. Justice Metcalf, gives a decision of the court ( Shaw, C. J. ) that an auditor's report is prima facie evidence for the party in whose favor it is made, and adds in his head-note the expression, " and changes the burden of proof. " In 1848 ^ the court ( Metcalf, J. ) state that, in a suit by the payee of a promissory note against the maker, "the burden of proof is on the maker" to establish want of consideration. But two years later, ^ they say that the burden of proof is on the plaintiff, and remark (Fletcher, J. ) of the pre- vious case that " there is a sentence in this opinion which may be misunderstood ;. . . [ quoting it ]. This must be understood to mean that the burden of proof is on the maker to rebut the prima facie case made by producing the note, otherwise the prima facie evidence will be conclusive." In this same year, 1850,* the court ( Metcalf, J. ), while distinguishing, in the case of an alteration in a writing, between " the burden of proof " and the " burden of explanation, " define the burden of proof in terms borrowed from Baron Parke, but not understood by him or in English legal usage to be limited to the duty of establishing : ^ "The effect. . . would be that if no evidence is given by a party claiming under such an instrument, the issue must always be found against him ; this being the meaning of the * burden of proof.* I Curteis, 640." In 1858^ the court (Dewey, J.) re- mark upon the fact that the Chief Justice of the lower court had used the phrase in another than " the more precisely accurate use of the term ... as now held by the court, " but they conclude that it did not mislead the jury. In 1859^ the judge below ruled 1 Jones J/. Stevens, 5 Met. 373, 378, Hubbard, J. 8 Delano v. Bartlett, 6Cush. 364, 368. It may well be doubted whether this case rests upon the true analysis of the substantive law ; but it is still followed in Massachusetts, e. %.y in Perley v. Perley, 144 Mass. 104 ( 1887 ), and, to some extent, elsewhere. ^ Noxon V. DeWolf, 10 Gray, 343, 348. ^ Morgan v, Morse, 13 Gray, 150. i
 * Jennisont'. Stafford, i Cush. i68.
 * Wilde V. Armsby, 6 Cush. 314, 319.
 * See ante^ p. 53.