unless he can prove, by an extract from a legal register of birth or baptism, that the party employed is of the age required.1 So, in any prosecution of a chimney sweeper for illegally employing a climbing boy, the proof of the age of the person employed lies on the defendant. So, if a pawnbroker be charged with certain offences against "The Pawnbrokers' Act, 1872," he will be required to prove some lawful or reasonable excuse for his conduct.s 2 § 374. Again, in most of the prosecutions for offences against § 346A the Bankrupt Law, the accused will be open to conviction on the sole proof of his having committed the act complained of, "unless the jury is satisfied that he had no intent to defraud," or, "to conceal the state of his affairs," or, "to defeat the law," as the case may be. So, if any person exposes for sale, or transports by railway, or turns out on unenclosed land, any animal affected with a contagious disease, he will be deemed guilty of an offence against "The Contagious Diseases Animals' Act, 1869," unless he can show" that he did not know of the same being so affected, and that he could not with reasonable diligence have obtained such knowledge." So, under the same Act, if a farmer be charged with having diseased sheep and omitting to give notice of that fact to a police constable, it will be sufficient for the prosecutor to prove the diseased state of the sheep, and the defendant must then, if he can, rebut the charge by proof that he has given the due notice. So, if a consumer of gas be charged with fraudulently abstracting it, "the existence of artificial means" for altering the index to any meter, or for preventing any meter from duly registering, or for abstracting, consuming, or using gas when such meter is under the consumer's control, shall be "primâ facie evidence that such alteration, prevention, abstraction, or consumption has been fraudulently, know 5 1 7 & 8 V., c. 15, §§ 54, 55; 27 & 28 V., c. 48, § 6. See 30 & 31 V., c. 103, 227 & 28 V., c. 37, § 10. $ 14. 3 35 & 36 V., c. 93, § 23, r. 4, & § 31. 4 32 & 33 V., c. 62, §§ 11, 12; 35 & 36 V., c. 57, §§ 11, 12, Ir. $ 32 & 33 V., c. 70, §§ 57, 58. But see Carroll v. Eivers, I. R., 7 C. L. 226, which was decided on the Cattle Diseases Acts for Ireland, 29 & 30 V., c. 4, and 33 & 34 V., c. 36, and in which it was held that the proof of "knowledge" rested on the prosecutor. 6 Huggins v. Ward, 8 Law Rep., Q. B. 521. 1 ingly and wilfully caused by the consumer." A similar presumption of guilty knowledge is also recognised with respect to water when supplied by measure.2 § 375. In accordance with the law as just illustrated, "The § 3463 Prevention of Crimes Act, 1871,"3-after showing how minor offences against that Act may be prosecuted, goes on to enact, in subs. 3 of § 17, that " any exception, exemption, proviso, excuse, or qualification, whether it does or does not accompany the description of the offence in this Act, may be proved by the defendant, but need not be specified or negatived in the information or complaint, and, if so specified or negatived, no proof in relation to the matters so specified or negatived shall be required on the part of the informant, or prosecutor, or complainant." "4 § 376. In several of the instances above given, the Legislature § 347 has adopted a principle which the common law also recognises, and which may here be noticed as a second exception to the general rule, that the burthen of proof lies on the party who substantially alleges the affirmative. The exception is this, that where the subject matter of the allegation lies peculiarly within the knowledge of one of the parties, that party must prove it, whether it be of an affirmative or a negative character, and even though there be a presumption of law in his favour.5 Thus, where 1 34 & 35 V., c. 41, § 38. 2 38 & 39 V., c. 55, § 60. 3 34 & 35 V., c. 112. 4 This seems to be a favourite form of the present Parliamentary draughtsman, for it will be found in many other Acts passed in and since 1871. See The Pedlars Act, 1871, 34 & 35 V., c. 96, § 20, subs. 3; The Petroleum Act, 1871, 34 & 35 V., c. 105, § 15, subs. 5; The Infant Life Protection Act, 1872, 35 & 36 V., c. 38, § 11; The Mines Regulation Acts, 1872, 35 & 36 V., c. 76, § 63, r. 3; and c. 77, § 34, r. 3; The Licensing Act, 1872, 35 & 36 V., c. 94, § 51, r. 4; Roberts v. Humphreys, 8 Law Rep., Q. B. 483; 42 L. J., M. C. 147, S. C.; The Naval Artillery Volunteer Act, 1873, 36 & 37 V., c. 77, § 36; The Elementary Education Act, 1873, 36 & 37 V., c. 86, § 24, r. 2; The Public Health Act, 1875, 38 & 39 V., c. 55, § 252; and The Friendly Societies Act, 1875, 38 & 39 V., c. 60, § 33, subs. 5. 5 Dickson v. Evans, 6 T. R. 60, per Ashhurst, J. In R. v. Turner, 5 M. & Sel. 206, Bayley, J., says, "I have always understood it to be a general rule, that if a negative averment be made by one party, which is peculiarly within the knowledge of the other, the party within whose knowledge it lies, and who an action for penalties was brought, under the old law, against a person for practising as an apothecary without a certificate,1 the plaintiff would, independent of this exception, have been bound to prove the want of a certificate; for first, though the allegation was in a negative form, its proof was essential to the plaintiff's case; and next, the law might fairly presume that the defendant would not transgress the provisions of a statute; still, as the defendant was peculiarly cognisant of the fact, whether or not he had obtained a certificate, and, if he had obtained one, could have no difficulty in producing it, the law, which is founded on general convenience, compelled him to do so.2 3 § 377. This exception equally prevails in all civil or criminal § 348 proceedings instituted against parties for doing acts, which they are not permitted to do unless duly qualified; as for selling liquors, sporting, exercising a trade or profession, and the like.1 So, in an action for penalties against the proprietor of a theatre, for performing dramatic pieces without the written consent of the author, the onus of proving such consent lies on the defendant. In misprision of treason, if the treason be proved, and the knowledge of it be traced to the prisoner, he is, in strictness, bound to negative the averment of concealment, by offering proof 5 asserts the affirmative, is to prove it, and not he who avers the negative;" but 3 The Act of 1 & 2 W. 4, c. 32, which relates to Game, enacts, in § 42, that "it shall not be necessary, in any proceeding against any person under that Act, to negative by evidence any certificate, licence, consent, authority, or other matter of exception or defence; but that the party seeking to avail himself of any such certificate, licence, consent, authority, or other matter of exception or defence, shall be bound to prove the same." 4 R. v. Turner, 5 M. & Sel. 206; Smith v. Jeffries, 9 Price, 257; Harrison's case, Paley, Conv. 45, n.; Sheldon v. Clark, 1 Johns. 513; U. S. v. Hayward, 2 Gall. 485; Gening v. The State, 1 McC. 573. See Doe v. Whitehead, 8 A. & E. 571; cited ante, § 367, where this rule was held inapplicable. 5 Under 3 & 4 W. 4, c. 15, § 2. Morton v. Copeland, 16 Com. B. 517. 1 of a discovery on his part. The same rule is recognised in the Ecclesiastical Courts; and, therefore, if proceedings be there instituted against a clergyman for non-residence without licence or exemption, the promoter of the suit need neither allege nor prove that the defendant had not a licence, or was not resident on another benefice.2 § 378. The rules of law relating to the burthen of proof are $349 obviously of great importance in all legal proceedings, especially when viewed in connection with the doctrine of presumptions; but questions respecting their application most frequently arise at Nisi Prius, on arguments concerning the right to begin.3 The privilege of opening the case to the jury is frequently one of considerable advantage, as it not only enables the party enjoying it to create an impression in his favour, which it is difficult by subsequent evidence to erase, but in the event of witnesses being called by his opponent, it secures to him also the last word; still, cases sometimes occur where a defendant goes to trial relying simply on the weakness of the plaintiff's case, and where, if called upon to begin, he will instantly be defeated. Hence it follows, that the duty of beginning is seldom a matter of indifference, but is generally regarded as an object which it is important either to attain or to avoid, according to the circumstances. The question, therefore, is frequently discussed with much spirit; and as the principles which govern the right are difficult of application, and, moreover, are not very distinctly understood, the decisions are alike numerous and conflicting. A lengthened examination of these decisions would be misplaced in a work of this nature, but 1 R. v. Thistlewood, 33 How. St. Tr. 691, per Abbott, C. J., in charge to the Grand Jury. 2 Bluck v. Rackman, 5 Moo. P. C. R. 305, 314. 3 On the hearing of appeals in equity the appellant always used to begin. Williams v. Williams, 2 Law Rep., Ch. Ap. 15. 4 Best "On Right to Begin," 27, 28; Edwards v. Jones, 7 C. & P. 633. This was an action by the indorsee against the maker of a note; the plea in substance amounted to want of consideration, and the plaintiff replied, as to part of the sum claimed, that he gave consideration for the note, and as to the residue, nolle prosequi. Held by Alderson, B., that on this issue the defendant must begin, and as he had no witness, the plaintiff had a verdict. perhaps a few general rules may be laid down, that will be found of practical value. § 379. The first general rule on this subject is, that the party § 350 on whom the onus probandi lies,1 as developed on the record, must begin. It has been sometimes asserted, that the right of beginning belongs to the party on whom the affirmative of the issue lies; but this assertion, if literally understood, is by no means accurate, since, as we have seen, it does not apply to cases where either the affirmative allegation is supported by a legal presumption, or the truth of the negative averment is peculiarly within the knowledge of the party who relies on it. Indeed, the rule as stated above is subject to some exceptions, which it will be convenient here to notice. And, first, if the defendant will admit at the trial the whole primâ facie case of the plaintiff, he will perhaps be entitled to begin, provided he was not bound to have made this admission by his pleading at an earlier period. For instance, if a party, claiming premises as heir-at-law of the person last in possession, brings an action of ejectment against a devisee under such person's will, the defendant, as it seems, is entitled to begin, on admitting not only that the plaintiff is heir, but that the ancestor, through whom he claims, died seised of the estate.1 § 380. But this exception will be strictly confined to cases where § 351 the defendant admits the whole title of the plaintiff; and, therefore, if a defendant in ejectment were to admit at the trial a will under 1 As to the best tests of the onus probandi, see ante, § 365. 2 This rule is recognised in the Probate Division of the High Court, and therefore where a husband petitioned for a restitution of conjugal rights, and the wife answered by pleading his cruelty on which issue was joined, the respondent was held entitled to begin; Cherry v. Cherry, 1 Swab. & Trist. 319; 28 L. J., Pr. & Mat. 36, S. C. 3 Best "On Right to Begin," 29. See ante, §§ 367, 376. Goodtitle v. Braham, 4 T. R. 498; Doe v. Brayne, 5 Com. B. 670–674; Doe v. Barnes, 1 M. & Rob. 386, per Ld. Denman; Doe v. Smart, id. 476, per Gurney, B., after consulting Patteson, J. In this last case the defendant was allowed to begin, though the plaintiff, as to part of the premises, was prepared to prove that he was assignee of an outstanding term. See Rules of Sup. Ct., Ord. xix., r. 15, cited ante, § 301, n, 1. |