The defendant is now, as we have seen, enabled to obtain the benefit of his own testimony, and the Court will probably not be bound by any previous decisions in balancing his testimony against that of a witness.1

It may be observed, however, on this subject, that where a parol agreement, with part performance, has been insisted upon in a bill, and the agreement denied by the answer, yet if it were proved by one witness, and supported by circumstances of part performance, such as delivery of possession, the specific performance of the agreement would have been decreed.2 Even in such cases, if the defendant, by his answer, denied the agreement set up by the bill, and his denial was confirmed by circumstances, the Court would not decree a specific performance, although the case made by the bill was corroborated by one witness. And where a particular agreement by parol (viz. an agreement to grant a lease for three lives) was stated in the bill and proved by one witness and confirmed by acts of part performance, but the answer admitted an agreement for one life only, and was supported by the testimony of one witness, the Court refused to decree for the plaintiff, the evidence of part performance being equally applicable to either agreement.4

Sometimes the Court has given the defendant an opportunity of trying the case at Law, when the plaintiff's case has been supMunf. 183; Love v. Braxton, 5 Call, 527; Vance v. Vance, 5 Monroe, 523; Cunningham v. Freeborn, 3 Paige, 557; Estep v. Watkins, 1 Bland, 488. The answer that denies, may contain the circumstances to corroborate the plaintiff's proof, so as to overcome itself, when taken in connection with that proof. Pierson v. Catlin, 3 Vermont, 272; Maury v. Lewis, 10 Yerger, 115. Circumstances alone, in the absence of a positive witness, may be sufficient to overcome the denial of the answer, even of a person who answers on his own knowledge. Long v. White, 5 J. J. Marsh. 238; Robinson v. Stewart, 10 N. Y. (6 Selden,) 189; Robinson v. Hardin, 26 Georgia, 344; Roberts v. Kelly, 2 P. & H. 390. See also Sturtevant v. Waterbury, 1 Ed. 442; Brown v. Brown, 10 Yerger, 84; Dunham v. Gates, 1 Hoff. Ch. R. 188; Cunningham v. Freeborn, 3 Paige, 564; S. C. on appeal, 11 Wend. 251; Gould v. Williamson, 21 Maine, 276.

1 In Missouri, the old rule in regard to the weight of an answer in Chancery is done away with by the new code. If the defendant sets up new matter in his answer, the burden of proof is on him. Walton v. Walton, 17 Mis. (2 Bennett,) 376.

Pilling v. Armitage, 12 Ves. 78; and see Money v. Jordan, 2 Mac. & Gor.

Lindsay v. Lynch, 2 Sch. & Lef. 1.

ported by the evidence of only one witness and corroborating circumstances, and sometimes the Court has directed the answer of the defendant to be read as evidence.2

As the practice of directing an issue in a case of this description is one intended entirely for the satisfaction of the defendant, it is by no means compulsory upon the defendant to take one; and if the defendant declines an issue, the Court itself is bound to give judgment upon the question, whether the circumstances outweigh the effect of the rule, so as to authorize a decree against the denial in the answer.3

II. Admissions by agreement between the parties are those which, for the sake of saving expense or preventing delay, the parties, or their solicitors, agree upon between themselves.*

With respect to admissions of this description, as they must depend entirely upon the circumstances of each case, little can now be said respecting them, beyond drawing to the practitioner's notice the necessity there exists that they should be clear and distinct. In general they ought to be in writing, and signed either by the parties or their solicitors; the signature of the solicitor employed by the party being considered sufficient to bind his principal, the Court inferring that he had authority for that purpose.5

1 East India Company v. Donald, 9 Ves. 275; Ibbotson v. Rhodes, 1 Eq. Ca. Ab. 229, pl. 13; 2 Vern. 554, S. C.; Pember v. Mathers, 1 Bro. C. C. 52; Savage v. Brocksopp, 18 Ves. 335-337; post, "Feigned Issues." See Lancaster v. Ward, 4 Overton, 430; Smith v. Betty, 11 Grattan (Va.), 752.

* The answer cannot be read unless an order is made to that effect. Black v. Lamb, 1 Beasley (N. J.), 108; Gresley Eq. Ev. 227. See Rule 33, of the Rules of Practice in Chancery in Massachusetts; Gamble v. Johnson, 9 Missouri, 605; Kinsey v. Grimes, 7 Blackf. 290. In Marston v. Brackett, 9 New Hampshire, 350, the Court remarked that "the manner of proceeding to the trial of issues from Chancery is under the control of the Court. Orders may be made respecting the admission of testimony, and an order may be made for the examination of one or both of the parties; but this may be refused. If the party, after the evidence has been taken for the hearing, moves for a trial by the jury, we are of opinion the case should be tried there upon the same evidence upon which it would have been tried had it taken the usual course of cases in Chancery, and been examined by the Court; unless the Court, upon cause shown, make an order permitting further evidence to be introduced. Any other course would lead to great abuse," &c.

East India Company v. Donald, ubi supra.

Gresley Eq. Ev. (Am. ed.) 38, et seq.

'Young v. Wright, 1 Campb. N. P. 139; Gainsford v. Gammer, 2 Campb. N. P. 9; Laing v. Raine, 2 Bos. & P. 85.

It does not, however, appear to be necessary that an agreement to admit a particular fact should be in writing; and where, at Law, the plaintiff's attorney swore that he had proposed that the defendant should acknowledge a warrant of attorney, so as to enable the deponent, if it should become necessary, to enter up judgment thereon, and that the defendant had accepted his offer. It was considered well proved, that the defendant had agreed to acknowledge the instrument for all purposes, and that the plaintiff was at liberty to act upon the instrument without the necessity of producing the subscribing witness.1

It is to be remarked, that although the Courts are disposed to give every encouragement to the practice of parties or their solicitors agreeing upon admissions among themselves, they will not sanction an agreement for an admission by which any of the known principles of Law are evaded; and, therefore, where a husband was willing that his wife should be examined as a witness in an action against him for a malicious prosecution, Lord Hardwicke refused to allow her examination, because it was against the policy of the Law to allow a woman to be a witness, either for or against her husband. Upon the same principle, where the Law requires an instrument to be stamped, the Court will not give effect to an agreement between the solicitors to waive the objection arising from its not being stamped.3

SECTION II.

Of the Onus Probandi.

HAVING ascertained what matters are to be considered as admitted between the parties, either by the pleadings or by agreement, the next step is to consider what proofs are to be adduced in support of those points which are not so admitted; but before we proceed to the nature of those proofs, it will be right to devote a few

1 Marshall v. Cliff, 4 Campb. N. P. 133.

2 Barker v. Dixie, Rep. t. Hardwicke, 264. This practice may be altered since the recent changes in the law allowing husbands and wives to give evidence in their own cases; post, Pt. 3, § 1.

Owen v. Thomas, 3 M. & K. 353–357.

pages to the consideration of the subjects to which they ought to be applied.

In considering the question of what matters are to be proved in a cause, the first point to be ascertained is, upon whom the burden of the proof lies? And here it may be laid down, as a general proposition, that the point in issue is to be proved by the party who asserts the affirmative, according to the maxim of the Civil Law," Ei incumbit probatio qui dicit, non qui negat." This rule is common, as well to Courts of Equity as to Courts of Law, and, accordingly, when a defendant insists upon a purchase for a valuable consideration, without notice, the fact of the defendant, or those under whom he claims, having had notice of the plaintiff's title, must be proved by the plaintiff.2 And, in general, it may be taken for granted, that wherever a primâ facie right is proved, or admitted by the pleadings, the onus probandi is always upon the person calling such right in question. And here it may be observed, that a Court will always treat a deed or instrument

11 Phillips on Evid. 194. This is a rule of convenience, adopted not because it is impossible to prove a negative, but because a negative does not admit of the direct and simple proof of which the affirmative is capable. 1 Greenl. Ev. § 74; Dranquet v. Prudhomme, 3 Louis. R. 83, 86. See 1 Stark. Ev. (5th Am. ed.) 362 to 365; 1 Phil. Ev. 194 to 200; 2 Phil. Ev. (Cowen & Hill's notes, ed. 1839) 475 et seq.; Phelps v. Hartwell, 1 Mass. 71; Blaney v. Sargeant, 1 Mass. 335; Loring v. Steinman, 1 Metcalf, 204, 211; Phillips v. Ford, 9 Pick. 39. Regard is to be had in this matter, to the substance of the issue rather than to the form of it; for in many cases the party, by making a slight change in his pleading, may give the issue a negative or affirmative form, at his pleasure. 1 Greenl. Ev. § 74. To this general rule, that the burden of proof is on the party holding the affirmative, there are some exceptions. 1 Greenl. Ev. § 78. One class of these exceptions will be found to include those cases in which the party grounds his right of action upon a negative allegation, and where of course the establishment of this negative is an essential element of his case. 1 Greenl. Ev. § 78; Lane v. Crombie, 12 Pick. 177; Kerr v. Freeman, 33 Miss. (4 George,) 292. So where the negative allegation involves a charge of criminal neglect of duty, whether official or otherwise; or fraud; or the wrongful violation of actual lawful possession of property, the party making the allegation must prove it. 1 Greenl. Ev. § 80.

There is no difference in respect to the burden of proof, between proceedings at Law and in Equity; in both the party maintaining the affirmative of the issue has it cast upon him. Pusey v. Wright, 31 Penn. (State) 387.

A party in Equity, pleading matter in avoidance, takes upon himself the burden of proof of the matter so pleaded. Peck v. Hunter, 7 Ind. 295.

Eyre v. Dolphin, 2 Ball & B. 203; Saunders v. Leslie, Ib. 515; ante, p. 698; Field v. Sowle, 4 Russ. 112; and see Mawhood v. Milbanke, 15 Beav. 36.

Banbury Peerage, 1 S. & S. 156.

as being the thing which it purports to be, unless the contrary is shown; and, therefore, it is incumbent upon the party impeaching it, to show that the deed or instrument in question is not what it purports to be; therefore where a bond, which was upon the face of it a simple money bond, was impeached as being intended merely as an indemnity bond, it was held that the burden of proving it to be an indemnity bond, lay on the party impeaching it. So, if a party claims two legacies under two different instruments, the burden of showing that he is only entitled to one will lie upon the person attempting to make out that proposition; for the Court will assume that the testator, having given the two legacies by different deeds, meant to do so, till the contrary is established.2

Indeed, in all cases where the presumption of Law is in favor of a party, it will be incumbent on the other party to disprove it, though in so doing he may have to prove a negative; therefore, where the question turns on the legitimacy of a child, if a legal marriage is proved, the legitimacy is presumed, and the party asserting the illegitimacy ought to prove it; for the presumption of Law is, that a child born of a married woman whose husband is within the four seas, is legitimate, unless there is irresistible evidence against the possibility of sexual intercourse having taken place.5

It is important, in this place, to notice that in cases where it is sought to impeach a will, or other instrument, on the ground of insanity, the rule as to the onus probandi is, that "where a party has been subject to a commission, or to any restraint permitted by Vaughan, 6 Bligh's N. R. 104; 1 Clark & Fin. 49.

1 Nicol v.

Hooley v. Hatton, 2 Dick. 461. Where two legacies are given to the same legatee, by the same instrument, the presumption is the other way. Ibid.

* Whenever there is a presumption that a fact exists, he who makes an allegation to the contrary must prove it. Higdon v. Higdon, 6 J. J. Marsh. 51. Deeds are presumed to be delivered on the day of their date. An allegation of another day must be proved. Ib. On a plea of no consideration, the onus lies on the party pleading it. Ib.

1 Phil. on Evid. 197; 1 Greenl. Ev. § 81. So where infancy is alleged. Ib. So in case a party once proved to be living is alleged to be dead, the presumption of life not yet being worn out by lapse of time; the burden of proof is on the party making the allegation, notwithstanding its negative character. Ib.

Head v. Head, 1 S. & S. 150; 1 Turn. & R. 138, S. C. See also Bury v. Phillpot, 2 M. & K. 349. As to other instances in which the presumption of law being in favor of the party, the Court will throw the onus probandi upon the opposite side; see 1 Phil. & Amos on Evid. 461.