Page:Harvard Law Review Volume 4.djvu/69

THE BURDEN OF PROOF. 53 against that party on whom the onus now lies " (p. 1201 ). '* I think the recent decision of your Lordship's House in Metropoli- tan Railway Company v. Jackson conclusively establishes this doctrine in cases in which the onus was, on the issue, as joined on the record, on the party against whom the verdict was directed. I am of opinion that it is equally so when a fact found, or undis- puted at the trial, has shifted that onus " ( p. 1202 ). *' The cases in which the principle that the onus may shift from time to time has been most frequently applied, are those of bills of exchange. At the beginning of a trial under the old system of pleading . . . the onus was on the plaintiff to prove that he was holder, and that the defendant signed the bill. If he proved that, the onus was on the defendant ; for the bill imports consideration. If the defendant proved that the bill was stolen, or that there was fraud, the onus was shifted, and the plaintiff had to prove that he gave value for it. This . . . depends not on the allegation, under the new system, on the record, that there was fraud, but on the proof of it at the trial " ( p. 1203 ). *' It was laid down in Ryder v. Womb- well that ' there is in every case a preliminary question, which is one of law, viz., whether there is any evidence on which the jury could properly find the question for the party on whom the onus of proof lies ; if there is not, the judge ought to withdraw the question from the jury, and direct a nonsuit if the onus is on the plaintiff, or direct a verdict for the plaintiff if the onus is on the defendant, ' and this was approved of and adopted in this House in the recent case of Metropolitan Railway Company v. Jackson. I have already given my reasons for thinking that the expression, * the party on whom the onus of proof lies, ' must mean, not the party on whom it lay at the beginning of the trial, but the party on whom, on the undisputed facts, it lay at the time the direction was given" (p. 1208). ( ^.) Baron Parke's state- ment in Barry v. Butlin ^ is well known : " The strict meaning of the term onus probandi is this, that if no evidence is given by the party on whom the burden is cast, the issue must be found against him. " This might seem to point to the duty of establishing. Does it } It describes only the duty of one, who- ever he may be, having the onus probandi, whatever that may be, to produce evidence. Now, the common English conception is 1 2 Moore, P. C. 484 ; s. c. i Curteis, p. 640 ; and so Metcalf, J., in 6 Cush. p. 319.