Cuse, 1 Sim. & St. 153; and where the issue is on the life of a person who is proved to have been alive within seven years, the party asserting his death must prove it; see Presumptive evidence, ante, pp. 40, et seq.

It has been stated to be a rule that, where the affirmative is peculiarly within the knowledge of the party charged, the presumption of law in favour of innocence is not allowed to operate, but the general rule applies, viz., that he who asserts the affirmative is to prove it, and not he who avers the negative. 3 Russell on Crimes, 4th ed. 277. Thus it has been said that in an action of a covenant for not insuring premises against fire, it lies on the defendant to prove that he has insured. Doe d. Bridger v. Whitehead, 8 Ad. & E. 576, per Littledale, J. Accord. Toleman v. Portbury, L. R., 5 Q. B. 294, per Willes, J. So in an action on the game laws, though the plaintiff must aver that the defendant was not duly qualified, yet he cannot be called upon to prove the want of qualification. Spieres v. Parker, 1 T. R. 145; R. v. Turner, 5 M. & S. 206. In an action against a person for practising as an apothecary without having obtained a certificate according to 55 Geo. 3, c. 194, the proof of certificate was held to lie upon the defendant. Apothe caries' Co. v. Bentley, Ry. & M. 159. It has, however, been observed, that the act itself seems to throw upon him such proof. Elkin v. Janson, 13 M. & W. 662, per Alderson, B. So where, on a conviction for selling ale without a licence, the only evidence given was that the party sold ale, and no proof was offered of his want of a licence; it was held, that the conviction was right; for that the informer was not bound to sustain in evidence the negative averment; and it was said by Abbott, C. J., that the party thus called on to answer sustains no inconvenience from the general rule, for he can immediately produce his licence; whereas, if the case is taken the other way, the informer would be put to considerable inconvenience. R. v. Harrison, Paley on Convictions, 2nd ed., 45, n. From the observations of the court in Doe d. Bridger v. Whitehead, infra, it would seem that the burden of proof in the instances above cited of convictions, &c., lies on the defendant, not because the matter is peculiarly within his knowledge, for that cannot vary the rule of the law, but because the legislature has in those cases, by a general prohibition, made the act of the defendant primâ facie unlawful. See also Abrath v. N. E. Ry. Co., 11 Q. B. D. 440, 457, per Bowen, L. J. And in actions for the recovery of possession of land, on the ground of forfeiture, it always rests on the lessor, the plaintiff, to show that the estate which he has granted has been forfeited by the tenant. Toleman v. Portbury, infra. Thus, where the action is brought on a breach of a condition to insure "in some office in or near London," it lies on the plaintiff to prove the omission. Doe d. Bridger v. Whitehead, 8 Ad. & E. 571; see also Price v. Worwood, 4 H. & N. 512; 28 L. J., Ex. 329. So where A. was lessee of a dwelling-house under a condition not to permit a sale by auction on the premises without his lessor's consent in writing, and he sublet to the defendant with the lessor's consent, and subsequently assigned his goods on the premises to X., who there sold them by auction; it was held that, in the absence of evidence that the sale was by A.'s permission, there was no forfeiture, and further, that the onus was thrown on the lessor of showing the non-existence of a written consent to the sale. Toleman v. Portbury, L. R., 5 Q. B. 288, Ex. Ch.

Under the Rules, 1883, O. xxi., 1. 4, ante, p. 73, the plaintiff must prove the damages he alleges he has sustained, unless the defendant expressly admit them. In an action on a common money bond, the plaintiff need not show that the bond is forfeited; it rests on the defendant to prove payment. Penny v. Foy, 8 B. & C. 11, 13.

The question of the onus of proof is one which may arise in any stage of a trial, and is therefore not necessarily connected with, nor in all cases deter

mined by, the same considerations as the right to begin on trials at Nisi Prius; as to which see further post, sub tit. Course of evidence and practice at Nisi Prius; Right to begin.

In many cases there are statutable provisions regulating the burden of proof. See them collected in 1 Taylor Evid., § 345; but these chiefly relate to criminal proceedings.

PROOF OF DOCUMENTS.

Under the present head will be considered the mode in which various kinds of documents, usually adduced in evidence, must be proved.

As a general rule, before a document can be proved at a trial it must itself be produced in court, but there are certain documents of a public character which either at common law or by statute are provable by copies without production of the original in court.

Before enumerating the means of proving the several documents under their respective heads, it will be convenient to show here when and how this method of proof is admissible.

PROOF BY COPIES.

The various kinds of copies by which original documents may in general be proved, may be classed under four heads; viz.: 1. Exemplifications; 2. Office copies; 3. Examined copies; and 4. Certified copies.

There are certain statutory provisions for proving particular documents; these will be found under the title of the documents to which they respectively apply.

Proof by Exemplification.

Exemplifications are of two kinds :-under the Great Seal, or under the seal of the court in which the record is preserved. An exemplification under the Great Seal may be obtained of any record of the Court of Chancery, or of any record which has been removed thither by certiorari; but private deeds, so exemplified, will not be admitted in evidence. B. N. P. 227. An exemplification produced from the proper custody, and purporting to exemplify a commission from the crown, is evidence, though the seal has been lost. Beverley, Mayor of, v. Craven, 2 M. & Rob. 140. An exemplification under the seal of the Exchequer is evidence of a commission out of that court and of the return thereto, in respect of crown lands. Tooker v. Beaufort, Dk. of, Sayer, 297. So an exemplification of a recovery under the seal of the Great Sessions of Wales. Olive v. Guin, 2 Sid. 145. So of Chester, S. C. Id. And the seals of those courts (it is said) prove themselves. Com. Dig. Testm. (A. 2), ante, p. 76. Exemplification may be given of a lost probate. Shepherd v. Shorthose, 1 Stra. 412.

Proof by Office Copy.

An office copy, that is, a copy made by the officer having custody of the document, always was, in the same court and in the same cause, equivalent to the document of which it was a copy. Per Lord Mansfield, in Denn d. Lucas v. Fulford, 2 Burr. 1179; B. N. P. 229. And for this purpose, the judge who tried the issue at Nisi Prius was considered as acting under the

authority of the court in which the action is pending, and as an emanation of that court. R. v. Joliffe, 4 T. R. 285, 292. And now by the J. Act. 1873, ss. 29, 30, a judge or commissioner trying causes shall be deemed to constitute a court of the High Court of Justice. An office copy of depositions in Chancery was evidence in that court but would not be admitted in a court of common law without examination with the original; B. N. P. 229; unless, perhaps, in the case of the trial of an issue out of Chancery. See Highfield v. Peake, M. & M. 109, per Littledale, J. See, however, Burnand v. Nerot, 1 C. & P. 578, cor. Best, C. J., contra. See, further, as to proof of depositions, affidavits, &c., by office copies, post, pp. 108, 109. In an action against the sheriff for a false return, the plaintiff could not use office copies of the writ and return, though the original cause was in the same court, for the cause is a different one. Pitcher v. King, 1 Car. & K. 655.

By Rules 1883,0. xxxvii.,r. 4,“Office copies of all writs, records, pleadings, and documents filed in the High Court of Justice shall be admissible in evidence in all causes and matters and between all persons or parties to the same extent as the original would be admissible." The rule however, in so far as it alters the rule of evidence above stated, seems to be ultra vires; see J. Act, 1875, s. 20, post, p. 143. By O. lxi., r. 7, ante, p. 77, office copies are sufficiently authenticated if they appear to be stamped with a seal of the central office (constituted by stat. 42 & 43 Vict. c. 78, ss. 4, et seq.).

Office copies of documents registered or deposited in the central office, e.g. bills of sale, under 41 & 42 Vict. c. 31, s. 16; powers of attorney, under 44 & 45 Vict. c. 41, s. 48, are made evidence in some cases by statute.

Where a copy is made by a public officer specially intrusted to make copies and to deliver them to the parties as part of their title, they are admissible in evidence without proof of having been actually examined. B. N. P. 229; Appleton v Braybrook, Ld., 6 M. & S. 34, 38. But a copy of a judgment, purporting to have been examined by the clerk of the Treasury (who is not intrusted to make copies), is not admissible without proof of its accuracy. B. N. P. 229. See further, Proof by certified copy, post, p. 93, and Effect of public books and documents, post, p. 199, et seq.

Proof by Examined Copy.

The contents of a document of a public nature required by law to be kept, may be proved by producing a copy verified by the oath of a witness who has compared it with the original, and will swear that it is complete and correct. What are public documents, in this sense, has never been very accurately defined; but the term seems to include all documents in which the community at large is interested, and which it is desirable not to remove from their place of deposit. Lynch v. Clerke, 3 Salk. 154. The term would clearly include all records of any court whatsoever, and all registers of births, deaths, and marriages; registers having reference to shipping and navigation, to trade, and to the public health; vide post, p. 117, The rule applies equally to such public registers kept abroad, as there is a presumption that the foreign authority in whose custody they are, would not allow their removal to this country. R. v. Castro, Q. B., trial at bar, 28th Nov., 1873, ex rel. editoris (post, p. 123), following Lanesborough's (El. of) Claim, 1 H. L. C. 510, n., and Abbott v. Abbott, 29 L. J., P. M. & A. 57, cited post, p 121.

et seq.

As to proof of depositions and affidavits filed in court, see Proof of depositions and affidavits, post, pp. 108, et seq.

An examined copy of a record or other document must be proved by a witness who has examined it line for line with the original, or who has

Examined Copies.-Certified Copies.

93

Reid v.

examined the copy while another person read the original. Margison, 1 Camp. 469. And it is not necessary (though in peerage cases a more rigorous rule prevails (Slane Peerage, 5 Cl. & Fin. 42) for the persons examining to exchange papers, and read them alternately. Gyles v. Hill, 1 Camp. 471, n.; Rolf v. Dart, 2 Taunt. 52. The copy must not contain abbreviations which do not occur in the original. R. v. Christian, Car. & M. 388. Where an examined copy is put in evidence, some account should be given of the original record; thus, it ought to be shown that the record, from which the copy was taken, was seen in the hands of the proper officer, or was in the proper place for the custody of such records. Adamthwaite v. Synge, 1 Stark. 183; S. C. 4 Camp. 372.

The 14 & 15 Vict. c. 99, s. 14 (post, p. 96), contains provisions for the admissibility of examined copies of public books and documents, and puts examined copies and copies certified under that act on the same footing. See cases decided thereon; post, p. 96.

Examined copies of bankers' books may be given in evidence, and may be verified by affidavit. Bankers' Books Evidence Act, 1879; 39 & 40 Vict. c. 11, ss. 3-5, vide post, p. 116.

Proof by Certified Copy.

By the 1 & 2 Vict. c. 94, s. 12, it is provided "that the Master of the Rolls, or deputy keeper of the records, may allow copies to be made of any records in the custody of the Master of the Rolls, at the request and costs of any person desirous of procuring the same; and any copy so made shall be examined and certified as a true and authentic copy by the deputy keeper of the records, or one of the assistant record keepers," appointed under the act, "and shall be sealed or stamped with the seal of the Record Office, and delivered to the party for whose use it was made." By sect. 13, "every copy of a record in the custody of the Master of the Rolls, certified as aforesaid, and purporting to be sealed or stamped with the seal of the Record Office, shall be received as evidence in all courts of justice, and before all legal tribunals, and before either House of Parliament, or any committee of either house, without any further or other proof thereof, in every case in which the original record could have been received there as evidence."

The records of all the superior courts, and some public records not of a judicial character, are after the lapse of a certain time deposited in the Record Office, in the custody of the Master of the Rolls.

There are some cases in which copies certified by persons not attached to any court, but holding a public position, are made evidence. The following are amongst the statutes containing such provisions :-The 41 Geo. 3, c. 109, s. 35, 3 & 4 Will. 4, c. 87, ss. 2 and 4, 8 & 9 Vict. c. 118, s. 146, awards and orders of Inclosure Commissioners; 7 Geo. 4, c. 46, ss. 4 and 6, returns made by bankers of the members, &c., of their firms; 3 & 4 Will. 4, c. 74, s. 88, acknowledgments of deeds by married women; 4 & 5 Will. 4, c. 30, ss. 10 and 11, 5 & 6 Vict. c. 27, s. 14, leases and exchanges, by ecclesiastical corporations; 6 & 7 Will. 4, c. 71, s. 2, agreements and awards confirmed by the Tithe Commissioners; Id. c. 86, s. 38, 25 & 26 Vict. c. 53, s. 123, documents from the General and Land Register Office; 5 & 6 Vict. c. 45, s. 11, 7 & 8 Vict. c. 12, s. 8, 25 & 26 Vict. c. 68, ss. 4 and 5, entries at Stationers' Hall relating to copyright; 6 & 7 Vict. c. 18, s. 68, decisions of the Common Pleas in appeals from revising barristers; 5 & 6 Vict. c. 108, §. 29

leases and instruments deposited with the Ecclesiastical Commissioners; 6 & 7 Vict. c. 86, s. 16, cab licences; 32 & 33 Vict. c. 71, s. 109, 46 & 47 Vict. c. 52, s. 134, proceedings of the Court of Bankruptcy; 7 & 8 Vict. c. 101, s. 69, proceedings of boards of guardians; 8 & 9 Vict. c. 18, s. 50, proceedings of the sheriff's court under the Lands Clauses Consolidation Act, 1845; Id. c. 20, s. 10, plans and books deposited with clerks of the peace by railway companies, with whose acts the Railways Clauses Consolidation Act, 1845, is incorporated; Id. c. 100, s. 7, orders and proceedings of the Lunacy Commissioners; 12 & 13 Vict. c. 109, ss. 11 and 17, documents issuing from Chancery and the Enrolment Office; 16 & 17 Vict. c. 70, s. 100, orders of the Lord Chancellor in Lunacy; 9 & 10 Vict. c. 95, s. 111, proceedings in the County Courts; 38 & 39 Vict. c. 87, ss. 80, 107, 120, certificates and instruments from the office of land registry; 21 & 22 Vict. c. 97, s. 7, orders of the Privy Council under the Public Health Act, 1858; 18 & 19 Vict. c. 121, s. 32, orders and resolutions of metropolitan local authority for removal of nuisances; 38 & 39 Vict. c. 55, s. 186, bye-laws made by local authority under that Act (the Public Health Act, 1875), and sect. 326, byelaws not inconsistent with that Act, and made under Public Health Acts thereby repealed; 32 & 33 Vict. c. 70, s. 84, orders under the Contagious Diseases (Animals) Act; 14 & 15 Vict. c. 99, ss. 7, 8, 13 (post, pp. 95, 96), proclamations, treaties, and other acts of state, and judgments, decrees, orders, and other judicial proceedings of any foreign state, or in any British colony, and qualifications of apothecaries; 16 & 17 Vict. c. 137, s. 8, 18 & 19 Vict. c. 124, s. 5, orders and proceedings of the Board of Charity Commissioners; 33 & 34 Vict. c. 75, s. 83, orders, &c., of Committee of Privy Council on Education; 16 & 17 Vict. c. 41, s. 5, entries in registers kept under the Common Lodging House Acts of 1851 and 1853; 17 & 18 Vict. c. 104, ss. 107, 277, 25 & 26 Vict. c. 63, s. 26, shipping documents; 37 & 38 Vict. c. 42, s. 20, certificate of incorporation, &c., and rules of building societies; 38 & 39 Vict. c. 60, s. 39, 39 & 40 Vict. c. 45, s. 24, documents relating to friendly and industrial and provident societies; 25 & 26 Vict. c. 89, ss. 61 and 174, 40 & 41 Vict. c. 26, s. 6, proceedings of joint stock companies; 26 & 27 Vict. c. 65, s. 24, rules of volunteer corps; 27 & 28 Vict. c. 113, s. 33, bye-laws of Thames Conservancy; certificates under Id. c. 120, s. 18, and c. 121, s. 20, relating to railways; 29 & 30 Vict. c. 117, s. 33, and c. 118, s. 29, rules of reformatory and industrial schools; 31 & 32 Vict. c. 37 (extended by several subsequent acts, vide post, pp. 100, 101), proclamations and orders; 32 & 33 Vict. c. 67, s. 64, valuation of property in the metropolis; 33 & 34 Vict. c. 14, s. 12, declarations and certificates under Naturalization Act, 1870; 37 & 38 Vict. c. 67, s. 8, bye-laws relating to metropolitan slaughter-houses; 42 & 43 Vict. c. 33, s. 158, proceedings of court martial; 44 & 45 Vict. c. 60, s. 15, register of newspaper proprietors; 45 & 46 Vict. c. 50, s. 24, bye-laws and proceedings of municipal corporations; 46 & 47 Vict. c. 57, ss. 89, 96, patents and documents and registers in the Patent Office. There are also provisions which authenticate registers of births, baptisms, marriages, deaths, and burials, which are noticed at length; post, p. 118, et seq. By the Crown Lands Act, 1873 (36 & 37 Vict. c. 36), s. 6, a print, purporting to have been made by the order of either House of Parliament, of a report made by the Commissioners of Woods and Forests to her Majesty or Parliament, is as good evidence as the original.

By the Documentary Evidence Act (8 & 9 Vict. c. 113), s. 1," whenever by any Act now in force, or hereafter to be in force, any certificate, official or public document, or document or proceeding of any corporation, or joint stock or other company, or any certified copy of any document, bye-law, entry in any register or other book, or of any other proceeding, shall be