Negative

Negative propositions are usually much more difficult of proof than affirmative, and in cases where they are involved, it is often a nice question upon which side lies the burden of proof. The general rule has been thus stated: Whoever asserts a right dependent for its existence upon a negative, must establish the truth of the negative, except where the matter is peculiarly within the knowledge of the adverse party. Otherwise rights of which a negative forms an essential element may be enforced without proof; Goodwin v. Smith, 72 Ind. 113, 37 Am. Rep. 144; Hale v. Smith, 78 N. Y. 4S0. Thus in actions for malicious prosecution, the plaintiff must prove that there was no probable cause; Carey v. Sheets, 67 Ind. 375; 2 Greenl.

Ev. § 454.

The rule applies whenever the claim is founded in a breach of duty in not repairing highways, and in cases of mutual negligence; Ilale v. Smith, 7S N. Y. 4S0; Shearm.

Sc Red. Nog. 312.

So one must prove the allegation that a negotiable promissory note was not taken in payment of a debt; Smith v. Bettger, 68 tenant that he did not repair; 9 C. Sc P. 734; 6 II.

L. C. 672.

In all actions for breach of warranty of the soundness of a personal chattel, the plaintiff must prove the negative. “It may be stated as a test admitting of universal application, that whether the proposition be affirmative or negative, the party against whom judgment would be given, as to a particular issue, supposing no proof to be offered on either side, has on him, whether he be plaintiff or defendant, the burden of proof which he must satisfactorily sustain.”

1 Whart. Ev. § 357; see 14 M. & W. 95; Ileinemann v. Heard, 62 N. Y. 448; Maltman v. Williamson, 69 111. 423; Colorado C. & 1. Co. v. U. S., 123 U. S. 317, 8 Sup. Ct. 131, 31 L. Ed. 182.