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1822.

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the plaintiff relied entirely on the fifth, wbich stated, that in consideration that he, at the request of James Stuart, in his lifetiune, had undertaken- and promised

RUTHERFORD. the said James Stuart, that he the plaintiff would not consign, directly or indirectly, any 'quantity of re-packed herrings to the London market, made up for the West Iulia market; and in particular to the house of Messrs. J. and A. Miller, for the space of one year from the 2d November, 1818. James Stuart undertook, &c, to pay the plaintiff 100l. when he should be thereto afterwards requested. The plaintiff then averred, that he, confiding in such promise, did not, at any time during the space of one year, consign directly or indirectly any quantity of re-packed herrings to the London market, made up for the West India market, and in particular to the house of Messrs. J. and A. Miller, but wbolly forbore so to do, according to his promise ; whereof James Stuart, after the space of one year, had notice; and assigned for breach, that neither the latter in his lifetime, nor the defendants since his death, had paid that sain to the plaintiff. The defendants pleaded the general issue.

At the trial of the cause before Lord Chief Justice Dallas, at Guildhall, at the Sittings after the last Term, the plaintiff proved that the agreement was in the handwriting of Gabriel Stuart; that he was in partnership with his brother James, who survived him; and that the plaintiff did not consigo any re-packed herrings to the house of J. and A. Miller, for the space of one year from the date of the agreement, although repeatedly urged to do so by Mr. A. Miller. For the defendants, it was objected, that this evidence was insufficient; and that the plaintiff ought to have shewn that he had not, during the year, consigned herrings to the London market generally, and not confined his proof to the house of J. and A. Miller.

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His Lordship, doubted whether the plaintiffs ought not to have called some clerk, to prove that he had not consigned herrings to any person in London during the year, but directed the jury to find a verdict for him, damages 1001.; and gave the defendant liberty to move to set it aside and enter a nonsuit, in case the Court should be of opinion that such evidence was necessary.

Mr. Serjeant Vaughan, on a former day in this Term, accordingly obtained a rule nisi on that objection; and also submitted that the declaration was insufficient, as it ought to have been stated therein that the defendants were the executors of James Stuart, who was the surviving partner of his brother Gabriel'; and that they should have been sued as such executors; and that as the name of Gabriel Stuart did not appear throughout the whole of the declaration, it was not supported by the agreement; and consequently that the variance was fatal. Indeed the action ought to have been brought against the executors 'of Gabriel Stuart, as the agreement was made and signed by him alone.

Mr. Serjeant Taddy now shewed cause; and as to the latter objection, submitted, that the case of Richards v. Heather (a) was a decisive answer--where it was determined, that under a declaration containing only one set of counts, charging the defendant in his own right, the plaintiff might recover one demand due from the defendant individually, and another due from him as a surviving partner. It was therefore unnecessary to have stated, that the defendant's testator was the surviving partner of his brother. Secondly, as to the insufficiency of the plaintiff's proof, it was only incumbent on him to shew in the first

(a) 1 Barn. & Ald. 29.

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instance, that he had consigned no herrings to the house of Miller and Co. during the year from the date of the CALDER

V. agreement. That was of itself, sufficient to establish the

RUTHERFORD allegation in the declaration. The obligation imposed on the plaintiff was not two-fold, and he made out a prima facie case, by shewing that he had made no consignments of re-packed herrings to Miller's house in London, the prevention of which was the principal object which induced Messrs. Stuart to enter into the agreement with him. If it were incumbent on him to shew that he had made no consignments to London generally, it would be next to an impossibility; for no clerk or servant of the plaintiff, or any wharfinger or other officer, could speak with certainty to that fact. Besides, the averment is a negative averment, and requires no proof whatever, as the negative must be inferred until the affirmative be shewn; and if the defendants intended to have disputed the fact of the plaintiff's not having sent herrings to the London market, they ought to have come prepared with proof, and shewn in what particular instance he had done so. The general rule laid down in Rex v. Barter (a) is, that if there be any description in the negative, the affirmative of which would be an excuse for the defendant, the proof of it lies on him. Although in Williams v. The East India Company (6), it was held that in an action by the owner of a ship against the defendants, for putting on board a quantity of combustible and dangerous articles without giving due notice thereof, it lay upon the plaintiff to prove this negative averment; yet there the party was charged with a culpable omission or breach of duty, in which case only the general rule does not apply; as it is one of the first priociples of justice, to presume that a person has acted legally, till the contrary is proved. The same principle was established in the case of Rex

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v. Lord Hallifax (a). Although those cases are exceptions to the general rule, they yet admit the universality of it, viz. that in every issue the affirmative is to proved; and as the plaintiff proved that he had sent no herrings to the house of Miller and Co., it was incumbent on the defendants to have contradicted it, or shewn that he had made a consignment to some other house in London.

Mr. Serjeant Vaughan, in support of the rule. The agreement by the plaintiff was in the nature of a condition precedent, and he should have shewn that he had performed it by satisfying the jury that he had not consigned any herrings, as therein described, either to Miller and Co., or to the London market. In Williams v. The East India Company, it was established that the best evi. dence must be given of which the nature of the thing is capable, and that the plaintiff there should have proved that the defendants did not give notice; and for that purpose should have called either the man who delivered, or he who received the cask on board, to shew what then passed. So here, the plaintiff might have proved by calling his own clerk, that he had made no consignments whatever to the London market within the time stipulated for by the agreement; and this would have obviated every difficulty, and could have been done without any inconvenience, or great expence. The exception laid down in Williams v. The East India Company, is not confined to a mere breach of duty; and here the contract itself should be looked at, and reasonable evidence of its performance should, at all events, have been given by the plaintiff.

Lord Chief Justice DALLAS. It is not necessary,

(a) Bull. Ni, Pri. 7th edit. by Bridgman, 298 (a).

under the facts of this particular case, to lay down any 1822. general rule, or draw, any distinction between negative

CALDER and affirmative averments. The leading rule is, that the

RUTUERFORD. point in issue must be proved by the party who asserts the affirmative; and the case of Williams v. The East India Company, forms an exception to such rule ; as it established, that where the law presumes the affirmative of any fact, the negative of such fact must be proved by the party averring it in pleading. Here, however, some evidence was given by the plaintiff in proof of his negative averment, for he proved that he had caused no consignments of re-packed herrings to be made to the house of Miller and Co., who were merchants in London. That threw it on the defendants to shew, that some herrings of that description had been sent by the plaintiff to other houses in London, or to the London market.

Mr. Justice Park. The plaintiff gave some degree of evidence in support of his negative averment, and I therefore think it was incumbent on the defendants to have proved that some consignments had been made by the former to the London market.

Mr. Justice BURROUGH. It would have been a different case if the plaintiff had given no evidence or shewn that he had not performed any part of his agreement, which was, that he in particular should consigo no herrings of a specified desgription to the house of Messrs. Miller, who resided in London. Such house may be considered as forming part of the London market, and the plaintiff established a prima facie case, by shewing that he had made no consignments of re-packed herrings to them for one year from the time of making the agreement.

Mr. Justice RicHARDSON. I am of the same opinion :

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