Potter v. Deyo

19 Wend. 361

Opinion

By the Court,

Bronson, J.

The statute gives a penalty of $25 for selling strong of spirituous liquors without having a license. 1 R. S. 680, § 15. Whether the defendant had a license or not, was a matter peculiarly within his knowledge, and I think the onus probandi lay upon him. This is like an action to recover penalties under the game laws, where, although the plaintiff must aver in pleading that the defendant was not qualified, it is enough for him to prove the killing of game, and it lies with the defendant to prove that he was qualified. Spieres v. Parker, 1 T. R. 144, per Lord Mansfield. Jelfs v. Ballard, 1 Bos. & Pull. 468, per Buller, J. and Heath, J. R. v. Stone, 1 East, 651, per Grose, J. and Le Blanc, J. It is a general rule of evidence that the onus probandi lies on the person who wishes to support his case by a particulur fact, of which he is supposed to be cognizant. Dickson v. Evans, 6 T. R. 60, per Ashhurst, J. There are many cases where a party is not bound to prove all that he is required to allege in pleading. Where the defendant pleads infancy, and the plaintiff replies that he promised after he attained the age of 21, it is enough for the plaintiff to prove a promise, and it lies with the defendant to show that he was under age at the time the promise was made. Borthwick v. Carruthers, 1 T. R. 648. The case at har is much like that of The Apothecaries' Co. v. Bentley, 1 Ry. & Mood: 159. That was an action for a penalty on the statute of 55 Geo. 3, c. 194, for practicing as an apothecary without having obtained the certificate required by law ; and Abbott, C. J. held that the plaintiffs were entitled to recover without proving that the defendant had not obtained a certificate. The cases where the negative charged consists of a criminal neglect of duty, and where the law presumes innocence, depend on a different principle. Williams v. East India Co., 3 East, 192. Rex v. Rogers, 2 Campb. 654.

There is a further reason why the judgment of the justice should not have been disturbed. The objection on which the common pleas proceeded, was not taken on the trial.

* The defendant not only omitted to allege this supposed de feet of proof at the time when it might have been supplied, but "he took a course calculated to mislead the justice. When the plaintiffs rested, the defendant moved for a non-suit on the particular ground that the plaintiff had not proved in what place the liquor was sold. As no other objection was made, the justice might very well suppose that this was all the question that the defendant intended to raise upon the evidence. The specified defect was immediately supplied and then the case was submitted to the justice, and he gave judgment for the plaintiffs. As a general rule, a party cannot have a review for an omission in the proofs of his adversary, which could have been supplied had it been pointed out at the proper time and clearly he should not be heard to allege such a matter for error, where by making a specific objection he may have induced the court to suppose that there was no other question for its consideration. The judgment of the common pleas must be reversed, and that of the justice affirmed.

Ordered accordingly.

Sed vide Pike v. Gandall, 9 Wendell, 153. Reporter.