the game laws, though the plaintiff must aver, in order to bring the defendant within the act, that he was not duly qualiQualification. fied; yet it is not necessary to disprove his qualifications; but it will be for the defendant, if he can, to prove himself qualified. (1) And it has been determined by the Court of King's Bench, that the same rule of evidence applies as well to proceedings on informations before magistrates, as to actions for penalties; and that a conviction, which specifically negatives the several qualifications mentioned in the statute, is sufficient, without stating evidence to negative those qualifications. (2) If such negative evidence were necessary to support the information, it would scarcely be possible in any case to convict, in consequence of the great number of distinct heads of qualification, which are enumerated in the statute. On the other hand, all the qualifications specified are peculiarly within the knowledge of the qualified person. If he is entitled to any such estate as the statute requires, he may prove it by his title-deeds, or by the receipt of the rents and profits; or if he is the son and heir apparent, or servant to any lord or lady of a manor, and appointed to kill game, that will be a good defence. All these qualifications are peculiarly within the knowledge of the party himself; but the prosecutor has probably no means of proving a disqualification. Plea of infancy. Although, in general, it is necessary for a party, who brings an action, to prove all the material facts, which he alleges in support of his claim, yet where the defendant pleads a fact within his own knowledge in discharge of himself, and the plaintiff still insists on the defendant's liability, alleging the same fact in his replication, there the burthen of the proof lies on the defendant, not upon the plaintiff. Thus, in an action of assumpsit, where the defendant pleaded infancy, and the plaintiff replied, that "the defendant, after he had attained his full age, ratified and confirmed the promise and undertaking," (1) By Lord Mansfield, in Spieres v. Parker, 1 T. R. 144. Buller, J., in 1 T. R. 649. Heath, J., in Jelfs v. Ballard, 1 Bos. & Pull. 468. Chambre, J., in Frontine v. Frost, 2 Bos. & Pull. 307, adm. per cur. in Rex v. Stone, 1 East, 650. (2) Rex v. Turner, 5 Maule & Selw. 206. the Court held, that the mere proof of a promise to pay was sufficient on the part of the plaintiff; and that it was for the defendant to prove the personal incapacity to contract, on which he grounded his defence, and which lay so peculiarly within his own knowledge. (1) On a trial for bigamy, the register of the first marriage Pros. for bigamy. being produced, which stated the marriage to be by licence, without stating it to be by consent of parents or guardians, the prisoner in his defence proved, that he was an infant at the time of the marriage; and it was held, that this made it necessary, on the part of the prosecution, to give some evidence of the consent required by the marriage act. (2) Any subsequent countenance given by the parents or guardians, or other circumstances of a similar kind, might afford ground for presuming the necessary consent. (3) In general, whatever the length of the pleadings may be, Admissions on the determination, as to the burthen of proof, must depend the record. upon the ultimate issue joined between the parties, without regard to admissions previously made on the record. It appears to have been decided, with reference to an issue joined on one only of several facts, which together constitute an answer to the action, that the neglect or inability to traverse the other facts involved in the answer cannot be treated as proof of those facts, so as to have the same effect, (with regard to the general rule,) which the actual proof of the facts by evidence would be allowed to have. In the case of Edmunds v. Groves, (4) in an action by the indorsee against the maker of a promissory note, the defendant pleaded, that the consideration of the note was money lost at gaming, that it was indorsed to the plaintiff with notice, and without any consideration for the indorsement: the plaintiff (1) Borthwick v. Carruthers, 1 T. R. 648. (2) Butler's case, Russ. & Ry. Cr. C. 61. (3) Ibid. in note. replied, that the note was indorsed to him without notice, and for a valuable consideration. At the trial, both parties refusing to give any evidence, Lord Abinger directed a verdict for the plaintiff, giving the defendant leave to move to enter a nonsuit. A motion was made accordingly, on the ground that the replication admitted the original defect of consideration, and that therefore, the onus probandi was thrown on the plaintiff. The rule was refused. It was assumed, for the purpose of the decision, that proof of the note having been given for a gaming debt would be sufficient to call upon an indorsee to prove a new consideration; and Lord Abinger rested his decision on the ground, that the fact of notice of the gaming transaction was involved in the issue, and that it was, at all events, necessary for the defendant to prove that fact, in order to call upon the plaintiff for proof of a new consideration. The Lord Chief Baron declined giving any opinion upon the effect of an admission on the record upon the onus probandi of an issue subsequently joined, but Alderson, B., said "an admission on the record is merely a waiver of requiring proof of those facts which are not denied, the party being content to rest his claim on other facts in dispute; but if any inferences are to be drawn by the jury, they must have those facts proved like any others." The question on which this learned Judge gave his opinion can never arise again in a similar case, if the plaintiff adopt the proper replication, (that technically called de injuriá suá,) the effect of which is to put the whole plea in issue. It should also seem that the plea was double, for if the plaintiff took the bill with notice of an illegality in it's inception, he would not obtain a title by giving a new consideration. If the plea were simply that the bill was obtained from the defendant by fraud, and indorsed to the plaintiff without consideration, and the plaintiff replied that it were indorsed to him for a good consideration, a decision that the onus probandi was on the defendant, would depend on the position taken by Mr. Baron Alderson. The general principles of the doctrine of protestation, as laid down in the old authorities, appear to support the view of the learned Judge. When a party was driven to admissions by the rules of pleading prohibiting a duplicity in the issue, the usual practice, for avoiding the being concluded by such admissions in other suits, was to protest against the truth of such admitted facts; so far as the immediate suit was concerned, it was said, the protestation was of no avail. The rule of H. T. 4 W. 4, seems only to have dispensed with the formality of a protestation. If the issue joined be found against the party making such admissions on the record, they are as conclusive in a subsequent action as if the facts had been found by a jury. (1) The rule, that a protestation has no effect in the particular action, seems to mean nothing more than that it can have no effect in putting the protested matters in issue; it contributes indeed, to one great object in pleading, that of narrowing and ascertaining the point to be tried, but, this being effected, all the surrounding facts set out in the pleading may, for the purpose of trial, be considered as if they were struck out of the record. SECTION II. Of the right to Begin and Reply. The rule as to the right to begin is in practice of some importance, as upon it depends the still more important right to reply, if the other party adduce evidence in opposition to that which is first given. Every advocate feels, the advantage of a reply is so great, as generally to decide the verdict, when the proofs are pretty nearly balanced between the parties; and this advantage is the greater, inasmuch as the Court above will not interfere with the decision of the Judge at nisi prius upon such a point. (2) (1) See Holdipp v. Otway, 2 Wms. Saund. 103, a. n. (1). (2) Hare v. Nunn, M. & M. 241. Fowler v. Coster, ib. Burrel v. Nicholson, 6 C. & P. 202. 1 M. & R. 304, S. C. Williams v. Davies, 1 Cr. & M. 464. Scott v. Lewis, 7 C. & P. 347. If, however, the Judge's decision is founded on an inversion of the onus probandi, and he makes the same error in directing the jury, that would be a ground of a motion for a new trial. HH H General rule. Actions on bills and notes. The general rule is, that the party, on whom the onus probandi lies, is entitled to begin. The rule, as laid down by Mr. Baron Alderson, in the case of Amos v. Hughes, (1) supplies a test for ascertaining who is the party to begin, which appears to be the most precise, and of the easiest application in practice. That learned Judge, in the case before cited, stated the rule to be,-that the party, against whom the verdict would be, if neither give any evidence, is the party who ought to begin. In that case, an action of assumpsit was brought for a breach of a contract to emboss calico in a workmanlike manner, the allegation of the breach in the declaration being, that the defendant did not emboss, &c. The plea, on which issue was joined, was, that the defendant did emboss the calico in a workmanlike manner. A question being made, whether the plaintiff or the defendant should begin, Alderson, B., held, that the plaintiff had the right. "Questions of this kind," said the learned Judge, "are not to be decided by simply ascertaining on which side the affirmative, in point of form, lies; the proper test is, which party would be successful, if no evidence at all were given. Now, here, supposing no evidence to be given on either side, the defendant would be entitled to the verdict, for it is not to be assumed that the work was badly executed; therefore, the burthen of proof lies on the plaintiff." In actions on bills of exchange and promissory notes, and on bankers' checques, if the pleas of the defendant impeach the consideration, the onus probandi is on the defendant (2); the law presumes that they were given for a good consideration, unless the contrary be proved. Nor does it make any difference in such a case, that the affirmative of the issue is, in point of form, on the plaintiff; as, if he take issue on a plea that (1) 1 M. & R. 464. See also in Milis v. Barber, 1 M. & W. 427, the interlocutory remarks of the judges. (2) Easton v. Pritchett, 1 C. M. & R. 798. Lacy v. Forrester, 2 C. M. & R. 59. Mills v. Oddy, ib. 103. |