ascertain what was the real value of his character at the time when it was attacked by the defendant; and, that they can best, if not only, arrive at a safe conclusion on this point, by inquiring what opinion was previously entertained respecting him, by those with whom he was personally acquainted. Such being the arguments on either side of this vexed question, it remains only to observe that the weight of authority inclines slightly in favour of the admissibility of the evidence, even though the defendant has pleaded truth as a justification, and has failed in establishing his plea.'

§ 334. It seems, however, that here, as in other cases where witnesses to character are admitted, evidence must be confined to the particular trait which is attacked in the alleged libel, and, asto this, it can only furnish proof of general reputation, and must by no means condescend to particular acts of bad conduct. And it is quite clear, that any evidence of rumours which are calculated to compromise the plaintiff's character, must be strictly confined to such as were prevalent before the publication of the slander of the defendant; for if this were not so, one man might slander another, and then call his neighbours to say that they had heard of the imputations which he had himself originated.3

1 See Richards v. Richards, 2 M. & Rob. 557; v. Moor, 1 M. & Sel. 284; Earl of Leicester v. Walter, 2 Camp. 251; Williams v. Callender, Holt's N. P. R. 307; Eamer . Merle, per Lord Ellenborough, cited 2 Camp. 253; Knobell v. Fuller, Pea. Ad. Ca. 139, per Eyre, C. J.; Newsam v. Carr, 2 Stark. R. 70, per Wood, B.; Ellershaw v. Robinson, per Holroyd, J.; Moore v. Oastler, in 1836, per Lord Denman, after consulting Parke, B.; Mawby v. Barber, in 1826, per Lord Tenterden; and Hardy v. Alexander, in 1837, per Coltman, J. These last four cases are cited in 2 St. Ev. 641, 642, n. e. Kirkman v. Oxley, per Heath, J., cited 2 St. Ev. 306, n. k. Contra-Jones v. Stevens, 11 Price, 235; Waithman v. Weaver, D. & R., N. P. C., 10; 11 Price, 257, n. S. C.; Cornwall v. Richardson, Ry. & M. 305, per Abbott, C. J.; Snowdon v. Smith, per Chambre, J., cited 1 M. & Sel. 286. In Scotland, the evidence is admissible. Dickson Ev., § 24, and cases there cited in n. d. For the American authorities, see Root v. King, 7 Cowen, 613; Bailey v. Hyde, 3 Conn. 463; Bennett v. Hyde, 6 Conn. 24; Douglass v. Tousey, 2 Wend. 352; Inman v. Foster, 8 Wend. 602; Walcott v. Hall, 6 Mass. 514; Ross v. Lapham, 14 Mass. 275; Foot v. Tracy, 1 Johns. 45.

2 See cases cited in last note, and further, Andrews v. Vanduzer, 11 Johns. 38; Sawyer v. Eifert, 2 Nott & Mc Cord, 511.

3

Thompson v. Nye, 16 Q. B. 175.

$335. In aggravation of damages the plaintiff cannot give evidence of general good character, unless counter-proof has been first offered by the defendant; for, until the contrary appear, the presumption of law is already in his favour. Therefore, in an action of slander for imputing theft, the plaintiff will not be allowed to prove his character for honesty, even though the defendant has placed on the record pleas of justification.' This rule has, in some cases, been carried to a cruel extent. Thus, in an action of seduction, where evidence was produced for the defence, to prove that the girl had previously had a child by another man, Lord Ellenborough would not allow a question to be asked respecting her general good character for chastity, but restricted the plaintiff to the proof that the specific charge made by the defendant was false;' and the same learned judge on another occasion, where the daughter was cross-examined at length, with the view of showing that she had been guilty of gross levity and indelicacy, rejected similar evidence, observing that the witness, on her re-examination, had had ample opportunity of explaining her conduct. In another case for criminal conversation, in which the defendant had endeavoured, by cross-examining the plaintiff's witnesses, to impeach his character, but had failed in the attempt, Lord Kenyon refused to permit the plaintiff to call witnesses to his general good conduct. It is true that in these cases the facts insinuated had, or might have, been denied, and that, consequently, the characters attacked remained in strictness unimpeached; still, the very circumstance of the questions being asked was calculated to excite a suspicion in the minds of the jury, which, in common justice, the plaintiff should have had an opportunity of entirely removing. It is satisfactory to find that a contrary rule has prevailed in two later cases, one of which has been recognised in Ireland.'

3

1 Cornwall v. Richardson, Ry. & M. 305, per Abbott, C. J.

2 Bamfield v. Massey, 1 Camp. 460.

* Dodd v. Norris, 3 Camp. 519.

4

King v. Francis, 3 Esp. 116.

1 C. & P. 100, n. a; 2 St. Ev. 306, 307.

Bate v. Hill, 1 C. & P. 100, per Park, J.; Murgatroyd v. Murgatroyd, per Bayley, J., cited 2 St. Ev. 307, n. o. See also R. v. Clarke, 2 Stark. R. 241. Brown v. Goodwin, Ir. Cir. Rep. 61, per Torrens, J. Trespass for seduction. The daughter was asked questions tending to impeach her repu

§ 336. The law which regulates the admission of general evidence of character for the purpose of impeaching the veracity of a witness, will be discussed hereafter;' but it may be here convenient to point out how far such evidence will be receivable, where its object is, not so much to shake the credit of the witness as to show directly that the act in question has not been committed. Thus, on indictments for rape, or an attempt to commit that crime, while evidence of general bad character is admissible to show that the prosecutrix, like any other witness, ought not to be believed upon her oath, proof that she is a reputed prostitute would go far towards raising an inference that she yielded willingly to the prisoner's embraces. General evidence, therefore, of this kind will be received, though the woman be not called as a witness, and though, if called, she be not asked, on cross-examination, any questions tending to impeach her character for chastity; but it seems that the counsel for the defence cannot go further, and prove specific immoral acts, either with the prisoner, or with other persons, unless he has first given the prosecutrix an opportunity of denying or explaining them.'

tation, whereupon the plaintiff was allowed to call witnesses to speak to her general good character.

Post, §§ 1324-1327.

2 R. v. Clarke, 2 Stark. R. 241, per Holroyd, J.; R. v. Clure, Ir. Cir. R. 275, per Crampton, J.

3 R. v. Martin, 6 C. & P. 562; R. v. Robins, 2 M. & Rob. 512; R. v. Aspinall, per Hullock, B., cited 3 St. Ev. 952, n. c. In R. v. Hodgson, R. & R. 211, it was held that evidence of the prosecutrix having had connexion with other men was inadmissible, but this case seems now to be overruled. On one occasion the prisoner's counsel was allowed to ask the prosecutrix, with the view of contradicting her, whether she had not, on a day since the alleged rape, been walking in a certain street with a common prostitute, looking out for men. R. v. Barker, 3 C. & P. 589, per Park, J., after consulting Parke, J.: see also Verry v. Watkins, 7 C. & P. 308; Andrews v. Askey, 8 C. & P. 7; and R. v. Dean, 6 Cox, Cr. Cas. 23.

CHAPTER III.

BURTHEN OF PROOF.

§ 337. A THIRD RULE, which governs the production of evidence, is, that the burthen of proof lies on the party who substantially asserts the affirmative of the issue. This rule of convenience, which in the Roman law is thus expressed, Ei incumbit probatio, qui dicit, non qui negat,' has been adopted in practice, not because it is impossible to prove a negative, but because the negative does not admit of the direct and simple proof of which the affirmative is capable;' and, moreover, it is but reasonable and just that the party who relies upon the existence of a fact, should be called upon to prove his own case. In the application of this rule, regard must be had to the substance and effect of the issue, and not to its grammatical form; for in many cases the party, by making a slight alteration in the drawing of his pleadings, may give the issue a negative or affirmative form, at his pleasure.*

$338. The best tests that can be devised for ascertaining on whom the burthen of proof lies, are, first, to consider which party would succeed if no evidence were given on either side;' and, secondly, to examine what would be the effect of striking out of the record the allegation to be proved, bearing in mind that the onus must lie on whichever party would fail, if either of these steps were pursued. For instance, if, in an action of covenant or

1 Gr. Ev. § 74, in part.

• Dig. Lib. 22, tit. 3, 1, 2; Masc. de Prob. Concl. 70, tot.; Concl. 1128, n. 10. See Tait. Ev. 1.

3 Dranquet v. Prudhomme, 3 Louis. R. 83, 86.

4 Soward v. Leggatt, 7 C. & P. 615, per Lord Abinger.

Amos v. Hughes, 1 M. & Rob. 464, per Alderson, B.; Belcher v. M'Intosh, 8 C. & P. 721, per id.; Doe v. Rowlands, 9 C. & P. 735, per Coleridge, J.; Osborn v. Thompson, 2 M. & Rob. 256, per Erskine, J.; Ridgway v. Ewbank, 2 id. 218, per Alderson, B.; Geach v. Ingall, 14 M. & W. 97, per id.

Mills v. Barber, 1 M. & W. 427, per Alderson, B.

assumpsit, brought against a tenant, the breach assigned be that the premises were not kept in repair, and this allegation be tra versed by the plea, the plaintiff must prove his negative aver. ment;' for though according to the grammatical construction of the issue, the affirmative lies on the defendant, yet the substantial merits of the case must be proved by the plaintiff; and if no evidence were given, or if the allegation on which issue was joined, were struck from the record, the defendant would clearly be entitled to a verdict. So, if a declaration on a life policy,-after averring that the insurance was effected on a statement made by the plaintiff, that the insured was not subject to habits or attacks of illness tending to shorten life, but was in good health,-should allege that this statement was true, and the defendant were to plead that it was false in these respects, that the insured was subject to habits and attacks tending to shorten life, to wit, to habits of intemperance and attacks of erysipelas, and was ill at the time when the statement was made, the burthen of proof would lie upon the plaintiff, though the plea should conclude with a verification, and be met by a replication offering a general denial, because, to entitle the plaintiff to a verdict, some evidence must be given to show that, at the time when the policy was effected, the life was insurable. Again, if to an action for not executing a contract in a workmanlike manner, the defendant plead that the work was properly done,' or if a declaration allege that a horse sold under a warranty was unsound, and this fact be traversed by the plea,' the onus, in either case, will lie on the plaintiff; and the

1 Soward v. Leggatt, 7 C. & P. 613; Doe v. Rowlands, 9 C. & P. 734, per Coleridge, J.; Belcher v. M'Intosh, 8 C. & P. 720, per Alderson, B. 2 Huckman v. Firnie, 3 M. & W. 505, 510; Ashby v. Bates, 15 M. & W. 589; 4 Dowl. & L. 33, S. C.; Geach v. Ingall, 14 M. & W. 95; Rawlins v. Desborough, 2 M. & Rob. 70, per Lord Denman ; 8 C. & P. 321, S. C.; Craig v. Fenn, C. & Marsh. 43, per id. In Pole v. Rogers, 2 M. & Rob. 287, Tindal, C. J., held that, under similar pleadings, the defendant should begin; but this case, being distinctly opposed to the authorities stated above, cannot be supported. 3 Amos v. Hughes, 1 M. & Rob. 464. 4 Osborn v. Thompson, 9 C. & P. 337, per Erskine, J. ; 2 M. & Rob. 254, S. C.; Cox v. Walker, cited 9 C. & P. 339, per Lord Denman ; S. P. ruled per Tindal, C. J., as cited id. 338. In Fisher v. Joyce, cited id. 338, Coleridge, J., allowed the defendant to begin, but in Doe v. Rowlands, id. 735, he confessed that this decision was wrong.