Page:Harvard Law Review Volume 4.djvu/85

THE BURDEN OF PROOF, 69 that " the burden of proof was upon the defendant to . . . con- trol the auditor's report, " and the court ( Bigelow, J. ) is obliged again to set forth the discrimination between ^* the technical sense " of the burden of proof and the other ; and then follows what looks like a confession that their exclusive use of the word had not gained any firm hold in the seven and twenty years since Judge Shaw had begun it. ** This mode of using the phrase, though somewhat loose and inaccurate, is quite co^nmon^ and where not improperly applied to a case, so as to confuse or mislead the jury, cannot be held to be a misdirection. " ^ Considering, therefore, that the widest legal usage, both in England and here, applies the term "burden of proof " in a sense which is satisfied by making out a prima facie case ; that this sense covers the greater variety of situations, viz., not merely the case of one who has a prima facie case, or a presumption against him, but also that of him upon whom rests the duty of going forward with evidence at the beginning ; and that it corresponds w ith the use of the phrase in ordinary discourse, — it would seem wise to fix upon it this meaning only, and to employ for the duty of making out a given proposition, some term, like that, already widely used, of the burden of establishing ; in other words, to adopt the mean- ing which is so carefully stated by the Lord Justice Bowen in Abrath v. North-Eastern Railway Co. ^ V. Whereabout in the law shall we place the subject of the burden of proof t It is common in our system to treat of it, when treated at all, in books on evidence ; and the result is that it is little discussed, for it does not belong there. ^ It belongs, as the law of evidence does, to the auxiliary, secondary, *' adjective " part of the law ; but it is by no means limited to the situation 1 The opinion goes on : " In this sense it was manifestly used in this case. The atten- tion of the court was not called to the distinction between that evidence which was suffix cient to impeach and overcome a prima facie case, and that which was necessary to sustain the issue on the part of the plaintiff. ... It would have been more correct for the court to have instructed the jury that the report of the auditor in favor of the plain- tiff z& prima facie evidence, and sufficient to entitle him to a verdict, unless it was im- peached and controlled by the evidence offered by the defendant. But we see no reason to believe that the instruction given was not properly understood, or that the defendant was in any way aggrieved thereby. " See also the difficult exposition in Wilder z^. Cowles, 100 Mass. 487 ( 1868). ^ See ante, p. 49. , 8 Bentham, Works, vi. 214. "This topic [the onus probandi^ . . , seems to be- long rather to Procedure than to Evidence. "