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then is on him as to the former, the burthen of proof in the whole action is
intiff (8 B. Af., 431); but, in actions for damages, an affirmative defence, wh
lustained, entitles the plaintiff to at least nominal damages, casts the burthen of
:he whole action on the defendant, though the burthen is on the plaintiff to pr<
ent of damage sustained. 15 B. Af., 31 ; 13 Bush, 477-78.

(4) An allegation of a pleading which is denied by an adverse pleading must be j
ugh it be repeated in an amended pleading which is not controverted. 3 J.

1 ; 3 Dana, 498 ; 7 Bush, 604.

(5) "A denial on the one side, of a fact not affirmed on the other side, can 1
h fact in issue or make it necessary for the party holding the affirmative to pro
t. S. C, 182.

(6) If a witness be incompetent to testify for himself, the party offering to int
1 must show that he has no interest. 86 Ky., 226.

(7) If the defendant introduce evidence to repel a prima facie presumption, the p
a right to introduce rebutting testimony. 14 Bush, 520.

2. The effect af legal presumptions an the burthen of proof .

See note 6, ante, page 151, for the distinction in pleading between conclusive presur
I prima facie presumptions, to the last of which alone \ 526 applies ; for there
question about the burthen of proof concerning a conclusive presumption, tc
ich no evidence is admissible ; such as the presumption that an obligation to
d binds the obligor to convey with general warranty of title, unless the bond <
express covenant more limited in its nature than that which the law would otl
re implied (I Afar., 232) ; whilst prima facie presumptions of law may be rebut
' competent evidence, even those rising from writings being refutable by paro
ny (2 Bush, 427) : and it seems proper to suggest that there is a distinction b
ma facie presumptions df law and prima facie presumptions of fact, the last of
y sometimes be properly founded by a jury or a chancellor on less solid groun<
se which are necessary to support a presumption of law. See Day v. Clarke's
far., 521, and Moore v. rogue's ex'rs, I Duv., 327.

The burthen of proof lies on a party to rebut any fact which the law presumes,
ie, to exist in favor of his adversary; as, the presumption that the acceptor of a
hange or order for money has funds of the drawer sufficient to pay it (5 Dana,
M., 512 ; 6 fd., 203) ; that a tenant holding over after his lease expires holds as 1
:he same rent and payable in the same way as under the lease (9 Dana, 316) ;
e to an administrator was given for assets of the intestate (15 B. Af., 633) ; tt



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BURTHEN OF PROOF. 387



ote knows that some of the payors are sureties, if such be the fact (4 Bush,
3 Id., 157) ; that an actual settler's improvement is notorious in its vicinity
-77) ; that a marriage celebrated according to the forms of law is valid (9

that children are legitimate (4 Bush, 60; but see 8 B. M., 611-12); that a
I on was verbal, unless the petition show that it was in writing (4 Met., 373) ;
;, a horse branded "U. S." belonged to the United States (I Bush, 293); and,
>artners, that the account-books of the firm are correct, though one member
ime, have wrongfully withheld them from the others (8 Dana, 226-27) ; the

of the destruction of a contract which has been delivered to the obligor (5
>), or which has ceased to have effect, such as a lease after its expiration and
the rent and surrender of possession to the lessor (3 Lilt., 382-83) ; of a suf-
ieration for a written contract (4 Mon., 531): and of negligence of a rail-
in y which has killed or damaged "any horses or other stock by the cars
ad" (G. S., ch. 57, §5; 14 Bush, 518), or if a passenger be injured by an
its trains or car (2 Duv., 558; 85 Ky., 371) ; though, in general, the burthen
>n a person, even on a child twelve years of age, who is injured by a railroad
rain whilst passing over its track (12 Bush, 41) : as to mental capacity, the

that an apprentice had sufficient capacity to learn a trade which his master

teach him (2 Dana, 132) ; that every person is of sound mind {Hawkins v.
3. M., 270; Milton v. Hunter, 13 Bush, 170) ; and that a person who is found,
aest,* to be of unsound mind, was so during such time before the inquest as is
; jury (1 Duv., 60), and that he has continued to be so, — the inquest being,
onclusive evidence of the condition of the party at the date of the inquest "
: as to death, the presumption that a person is dead from the lapse of nearly
since he executed a deed (7 B. M., 282), or from his failure to claim a deposit
eighte** years ^(83 Ky., 219), or from the granting of administration on his
f. M., 432) ; and " if any person who shall have resided in this State go from
eturn to this State for seven successive years, he shall be presumed to be dead,
therein his death shall come in question, unless proof t be made that he was
that time " (G. S., ch. 37, g 16) ; and a person's absence from his home, though it
Kentucky, for seven years without being heard from raises a presumption of
'., 230) : as to residence, the presumption that a person who is shown to have
esident of this State at a certain time has continued to be so (Gilly and Pryor
3 Litt., 249) ; and that a person resided in the State in which he made a con-
ti it appear that, six months afterward, he resided in a different State (2 Bush,
heirs, the presumption that every decedent has left heirs (1 Mar, 294; 6
83 Ky., 232) ; and that heirs who were foreigners by birth have continued to
ough residing in this State (2 Met., 190) : as to solvency, the presumption of
m the execution of a replevy-bond (Wright v. Strange, 5 B. M., 250), and
y from a return of nulla bona (7 B. M., 116) : as to intention, the presump-
larried woman who executed a note did so with intent to bind her separate
••» 2 73)» an< * that the payors of notes who gave to the payee a writing which

1 expect to pay them when they fall due: we have no offsets, nor will we have,
es " — did so to enable the payee to sell them (Wells v. Lewis, 4 Met., 269) ; and
tary conveyance of property was made with intent to defraud a subsequent

it from the grantor for a valuable consideration and without actual notice of



r. Hilts heirs, 1 B. M., 291, approval of the inquest by the court was held to be unnecessary.

ch. 53, art. a, \ 8.

: of hearsay statements, that the absentee has been seen alive, is not " proof." Smothers &

&c, 9 B. M^ 490 ; and see 7 Bush, 569.

»e law will not presume, from absence for seven years, that the absentee was dead at any

1 within that period, it seems that a jury may do so. 5 /./• M., 49a.



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88 EVIDENCE. [TITL1

ie conveyance (2 B. A/., 347; I Met., 353) ; and it was formerly held that a voh
mveyance to the grantor's wife or child was only prima facie fraudulent as to his ex
■editors (1 Met., 351 ; 3 Bush, 349-50) ; but it is clear that, now, all voluntary cc
ices are per se fraudulent as to all existing creditors of the grantor [G. S., ch. 44, t
z; 2 Bush, 73, 74; 3 Id., 215) : as to payments, the presumption that a paymenl
tortgagor to a mortgagee was made on the mortgage-debt ( Tharp v. Feltz's adm'r, 6 1
, that a note has been paid from the surrender of it to the payor (9 Bush, 30), t
sbt has been paid after the lapse of twenty years from its maturity (6 Mon., 6k
'. J. AT., 436; 3 Id., 106; 5 Dana, 525) ; and that an obligation in the possession c
sligee has not been paid (9 Dana, 288), unless twenty years have elapsed since i
ae (3 Lit/., 51), without circumstances repelling the presumption of payment (3 .
{4; 3 Litt., 51 ; 7 Dana, 417) : and, as to partial payments on a note, the pre*
on of a payment from the payee's obliterated indorsement thereof on the note ( Gra
foore & Burton, 7 Mon., 341) ; and the plaintiff, having obtained a judgment agair
Iministrator on a note, subject to a credit for a partial payment indorsed there
iving been made during the life-time of the decedent, and before an action on the
as barred by limitation, then sued the decedent's heirs to enforce a lien on land for
ent of the note; and they, without denying that the payment had been made, pl<
mitation ; and it was held that the payment must be presumed, prima facie, to have
ade at the date of the indorsement; 1, because the prima facie presumption seems
lat the indorsement was made with the obligor's privity; and, 2, because the judg
rainst the administrator was " prima facie evidence against them [the heirs] that i
>r no more than was then due " {Hopkins v. Stout, 6 Bush, 375) ; but, if the defei
jny the fact of payment, the burthen is on the plaintiff to prove that it was made s
me stated in the indorsement* {Frazer's adm'r v. Frazer's heirs, 13 Bush, 397):
ie possession OF property, the presumption of title to corporeal property fron
>ssession of it, whether it be land (Smoder v. McMillan's heirs, 4 Dana, 456), or pc
ty (3 Dana, 424; 2 Met., 582), though this presumption does not exist as to a
hich is not payable to the possessor of it, and which has not been assigned to him b
lyee {Gano v. McCarthy's adm'r, 79 Ay., 409) ; the presumption of possession of per
roperty from the ownership of it {4 J. J. M., 20; 7 Dana, 247-48), of a patent froi
ommonwealth to one who has held possession of land for thirty years under an entr;
irvey (1 Dana, 326), of a conveyance of the legal title to one who has held posse
r land for thirty years under a title-bond (2 J.J. M., 107), and of a power of attt
» make a conveyance after a possession for fifty years (7 B. M., 281) : as to the ac<
sce of deeds, the presumption that a deed which is beneficial to the grantee,
hich was delivered to the clerk of a court or other person for the grantee, was aco
f him when informed of such delivery (3 B. M., 220; 9 Id., 98, 99; 10 Bush, 42^
ell v. Farmer's Bank, 1 1 Bush, 34) : as to the delivery of deeds, the presumption
deed which was acknowledged before the proper officer had been previously deliver
ie vendee {Litt. S. C, 465-66; 7 /. /. M., 119, 120; 10 B. M., 180; 11 Bush, 41)
lat a deed which has been delivered to the grantee was delivered on the day of its
r Jtt. S. C, 466; 3 Mon., 54; 7/. /. M., 120; 5 Dana, 417-18; 10 B. M, 180):
scitals in deeds, the presumption that a recital in a sheriff's deed, of a fact concei
hich it was his duty to make a statement, is true (14 B. A/., 583 ; and see 4 Dana, .
td, as between the parties to a deed, — but not as to other persons (4 Bush, 610), exc
ib-vendee claiming compensation for loss of land under a former vendor's warran
tie {Hunt v. Orwig, 17 B. M., 73) — the presumption that recitals in it are tru
. M., 42; and cases cited ; 2 Bush, 427 ; 6 Id., 76) ; but see note (1), ante, page 12;



* The decision in English vJVathrn, 9 Bush, 387, has no bearing on this question, because in tha
e " payment as indorsed on the note was alleged in the petition and not controverted, but ad)
r the answer of the defendants."



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BURTHEN OF PROOF. 389

g that the statement in a contract of the consideration thereof is conclusive : as
he General Assembly of Kentucky, the presumption that an act appropri-
was enacted by the requisite constitutional majority (14 Bush, 287) : as to the
ier States, the presumption that the common law prevails in Pennsylvania (1
id in Illinois (8 Bush, 692) ; that the civil law of France prevails in Louisi-
, 28) ; and that the laws of Virginia, including statutes which were in force
of the separation of Kentucky from that State, are still in force there (7
as to the jurisdiction of courts, the presumption, as to courts of this
the United States, that they had jurisdiction, if it be alleged that the " judg-
ermi nation was duly made qr given " {Code, \ 122, and notes) — aliter, as to
her States, for their jurisdiction must be shown by proper averments (12
83 Ky., 611, impliedly overruling Scott v. Coleman, 5 Lilt,, 350; Williams v.
'. J, Af., 603, and Davis v. Connelly's exr*s, 4 B, Af,, 137) : as to decisions OF
presumption, not against a decedent's alienees (2 Duv., 405), but against his
risees, that the plaintiff's judgment against his executor or administrator is
> the amount of the plaintiff's demand (2 Duv,, 406; 6 Bush, 381-82); and
tion by the Court of Appeals that judgments appealed from are correct (I
3 Bush, 647-48) : as to ex parte proceedings of courts, the presumption
ranee and certificate by the circuit court of the claims of guards, to be paid
y court, is correct ( 2 Bush, 108) ; the presumption, against a sheriff's sureties,
tlements with the county court, for county levies collected, are correct (9
the presumption against wards that their guardian's settlements are correct
8, art, 2, § 13) ; the presumption, against distributees, that the settlements of
epresentative are correct (3 Bibb f 352) ; and the presumption against cesfuis
it their trustee's settlement was correct, he having been appointed trustee by
1 requested him to settle with the county court (5 Dana, 595); and see 7
as to settlements in chancery of the accounts of a lunatic's committee : as to
rs of public officers, or of special officers appointed by a court, the
that "one who signs his name, and follows it with words or letters indicating
official character, is such officer" (12 Bush, 605) ; and the presumption that
in performing official acts, have conformed to the law (4 A/on., 516, as to the
Afet,, 250, as to the Register; 2 LitL, 396, 1 Afet,, 18, and 4 Bush, 353, as to
r . J. Af,, 434, as to clerks of courts; Hardin, 362, as to surveyors; 2 Bibb, 214,
of the peace; 2 Duv,, 421-22, as to a special commissioner appointed by a
proof as to destroyed records ; and 1 Bush, 528, as to a special commissioner
r a court to sell property) — unless the return or other official statement of (he officer
has not conformed to the law (I Afet,, 145; I Duv., 251) ; and this presumption
held to exist as to sales of land for taxes (3 Bibb, 328; 2 Afar., 244; 2 Litt.,
211; 6 fd., 207; 5/. /. Af., 152; 5 B. Af., 462), though the court ruled
Afaguiar v. Henry, &c, 84 Ay., 13:* but this presumption does not apply
jf an officer's bailiff or agent who has taken no oath and given no bond to
duties (4 B. Af., 120; 14 fd., 543): and as to the legality of unofficial
esumption that an act which may have been legal or illegal was legal (2
10 Bush, 536) ; and that the attestation to a will, by a subscribing witness who
made according to the requirements of the statute. 17 B, Af., 390.

ision was speedily followed by the Revenue Act of May 17, 1886, article 9, g 19, of which
ier extreme, by declaring that, as between the purchaser and the former owner of land sold
tall he conclusively presumed that all the steps necessary to pass a good title have been duly
aken," except that the former owner may show that the land was never assessed or was not
don, or that the taxes were paid before the sale. But it was held in City of Louisville v.
'., 15, that the legislature has no more power to give conclusive effect to evidence M than
•e truth to be falsehood, or a tact to be present where none exists."



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390 EVIDENCE. [TIT



3. Additional illustrative cases as to the but t fun of proof .
(I) Cases placing the burthen of proof on the plaintiff,

a. A plaintiff claiming under a deed conveying the " balance " of a tract of Ian
show what that balance is, and where situated. 3 Afar., 20.

b. A plaintiff claiming under a patent for 1850 acres described by metes and I
" including within said bounds 522 acres entered for A, and 425 acres for B, and 1
which claims have been excluded in the calculation of the plat," can not recover i
showing the position of those entries. Litl. S. C, 281 ; 1 Mon., 143.

c. In an action to enforce a lien on land for the payment of notes, if it appe
they were given for the price of the land and of goods sold at the same time, the I
is on the plaintiff to show what part of the debt for which the notes were given
the purchase-money of the land. 10 B. Af., 384-85.

d. In an action to rescind an executed contract for the sale of land, for want of ti
burthen of proof is on the plaintiff: aliter, if the contract be executory. 5 Dana, 5

e. The plaintiff alleging that a contract with reference to Commonwealth's
(depreciated currency) was a loan, and the defendant alleging that it was a &
burthen of proof was held to be on the plaintiff (6 J. J. Af., 377) ; and, in an action
a railroad company, the plaintiff alleging that he had been forcibly ejected fr<
defendant's train, and the defendant alleging that he had left the train vol un tar
burthen of proof was held to be on the plaintiff. 83 Ay., 515-16.

/. In an action for $500, the defendant pleaded a set-off for $2,500 advanced
plaintiff; to which the plaintiff replied that said $2,500 was paid on a debt ot
which the defendant owed him, and the defendant rejoined that he had not o«
$3,000; and it was held that the burthen was on the plaintiff to prove a former <
more than $2,500. 4 Mon., 10, 11.

g. Upon a plea of non assumpsit within five years, the burthen was on the plai
prove a promise or acknowledgment of an existing debt within five years before tl
men cement of the action. 6 Afon., 185.

h. In an action on a written contract, even though it be a statutory bond o
attested by the clerk of a court,. an answer denying the execution of it places the I
of proof on the plaintiff (I Dana, 155) ; but the plaintiff can not be required to pro
the writing was signed under written authority from the defendant (83 Ky., 390) ; 1
the defendant prove that it was delivered as an escrow. 14 Bush, 615.

i. In an action to set aside a conveyance by a wife to her husband (through
person) upon the ground of fraud, the burthen is on the plaintiffs to prove unfain
the part of the husband. 18 B. Af., 908.

j. In an action on a written contract, the burthen is on the plaintiff to account
alteration or mutilation which appears on its face. 8 Bush, 577.

k. In an action against a railroad company for injuring the plaintiff whilst passii
its track, the burthen is on the plaintiff to prove negligence on the part of the deft
but not to prove the absence of contributory negligence of the plaintiff; the burt
proving contributory negligence being on the defendant; and the burthen of p
the whole action being on the plaintiff. Paducah <5r* Afemphis R. R. Co. v. Hoehl, 12
41. But a different rule applies to actions for injuring a passenger on a railroad o
"along the road," as there is a legal presumption of negligence in such cases. Se
ante, page 387.

/. If a bond to convey land does not show that the purchase-money was unpj
burthen is on the obligee to show that it is still due. 5 Afon., 407.

m. If a defendant plead a purchase for a valuable consideration, without notice
plaintiff's equity, the burthen is on the plaintiff to prove notice (3 Lift., 371-72),
the defendant to prove payment of the consideration. 4 J. J. Af., 561 ; 3 Dana, 57.

n. The plaintiff must prove his allegations concerning value or amount of d



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BURTHEN OF PROOF. 39 1

defendant make default, or though he present an affirmative defence without
Imitting such allegations, unless they be "accompanied by an allegation of an
nise, or by a statement of facts showing an implied promise, to pay such value
* 4 Mon., II ; Code, § 126", suds. 4, and note (e) thereto,

does not imply a promise to pay damages caused by a breach of a covenant (4
and I am not aware of any decision holding that the law will imply a promise
iges, however they may be caused ; though it has been held that the law will
mise to pay the value of property wrongfully converted by the defendant to
, if the plaintiff, instead of suing for damages for the tort, waive the tort and
ralue of the property. See note (8) I, ante, page 80.
r placing the burthen of proof on the defendant,

1 action by the vendees against the vendor to rescind a contract for the pur-
00 acres of first-rate land, to be chosen by the plaintiffs out of various lands
the defendant, they alleged that the defendant did not have 2,000 acres of first-
jid he answered that he had 2,000 acres of first-rate land, but the plaintiffs had
ke choice thereof; and it was held that the burthen was on the defendant to
le had shown to the plaintiffs 2,000 acres of first-rate land owned by him. 2

action on a covenant to do plastering when called on, if the plaintiff aver (as
0) a special demand, a plea of covenants performed dispenses with proof of a
d the burthen of proof is on the defendant. 2 J. J. M., 80 : see 3 Bibb, 203.
efendant charged with usury admit the payments alleged, but aver that they
in currency which was of less value than specie, the burthen is on him to
Mon. t 489.

;uit to enjoin a judgment, the plaintiff alleged that he had let the defendant
e, at $70, to be credited on his note to the defendant, which was not done ;
endant's answer admitted that he had received the horse at that price, but
t it was received in payment of another debt due to him from the plaintiff:
ie burthen of proof was on the defendant. 3 Dana, 498 ; and see 3 Mon.,

352.

action by a vendee to rescind an executory sale of land, for want of title, the
proof is on the defendant : a/iter, if the contract be executed. 5 Dana, 514.

action against a constable for property alleged to have been taken by him
aintiff *s possession, he pleaded that he had seized the property under an exe-
ist A (a stranger), and that it belonged to A, and prayed for a return of it;
ntiff took issue thereon by traversing the averment of property in the stranger
lg that it was in himself; and it was held that the burthen of proof was on
nt. I B. M., 241-42 ; ace, 2 Met, 582 ; but see 2 Bibb, 428.
an answer denying that the plaintiffs were the owners of the note sued on and
it they had assigned it to a third person, the burthen of proof was held to be
idant. 3 Met., 135.

i defendant plead the purchase of property for a valuable consideration,
ice of the plaintiff's equity, the burthen is on the plaintiff to prove notice (3
md on the defendant to prove payment of the consideration. 3 Dana, 57.

action by the owner against the bailee of property, the burthen is on the
> account for any injury to it whilst in his possession. 14 B. M., 122.
action to subject mortgaged property, under the act forbidding preference of
ie burthen is on the defendant to prove that the mortgage-debt was created
sly with the mortgage. 1 Met., 458.

a of covenants performed casts the burthen of proof on the defendants, and
ith the necessity of any proof on the part of the plaintiff. 3 Bibb, 203 ; 2
>, 81.



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3Q2 EVIDENCE. [TITLE

/. In an action on a policy of fire insurance, which provided that, "if the butldii
any part thereof falls, except as a result of fire, all insurance under this policy on it <
contents shall immediately cease and determine/' the defendant's answer admittec
insurance, the destruction by fire of the insured goods in the building, and the amoui
loss alleged by the plaintiff, but averred that the building fell before the fire origin;
and the burthen of proof was held to lie on him. 87 Ky., 410.

m. Upon a special plea of non est factum , as, that the writing sued on has been al
by the plaintiff, the burthen of proof is on the defendant (5 Dana, 260) ; unless the 1
ation appear on the face of the writing, in which case the burthen is on the plaint
explain it (8 Bush, 577) ; and if the defendant prove an alteration by extraneous evid<
the burthen is shifted on the plaintiff to explain it. 13 Bush, 401.

II. The burthen of proof in actions for malicious prosecutions.

I. As to actions for malicious prosecutions of criminal proceedings.

According to the opinion in Ullman v. Abtams, 9 Busk, 738, the nature of the de
in which does not appear, the burthen lies on the plaintiff to prove both that the a
was malicious and that it was without probable cause.

It is clear that the plaintiff must allege both malice and want of probable cause
note (2) ante, page 89), and the burthen of proof is on him as to both allegations, if
are traversed by the defendant ; and such was the rule up9n the plea of not guilty, v
the old practice. 4 J. J. AL, 629; 5 B. M., 546. But that plea is not allowable v
the Code (see note (2) a, ante, page 121), and the defendant must traverse each allega
or he may, even without traversing the allegation of malice, file a special plea of prol
cause* (see 4 J. J. AL, 628-29) ; for, as all the decisions on the subject hold, the pla



Online Librarystatutes Kentucky. LawsCivil and Criminal codes of practice of Kentucky → online text (page 54 of 142)