BURDEN OF PROOF, in legal procedure, si,gnifies the obligation to establish by evi dence certain disputed facts; and, as a general rule, this burden lies on the party assert ing the affirmative of the issue to be tried or question in dispute, according to the maxim ei incumbit probatio qui dicit non qui negat—that is, proof is incumbent on him who asserts, not on him who denies. The principle of the law is, that the B. of P. is ou the party who would fail if no evidence were adduced on either side. Accordingly, it almost always rests on the plaintiff in an action, or on the party asserting the facts on which the result of the litigation must depend. In one case tried before the late baron Alderson, that learned judge laid down that the proper test was, 9e1ich party 'would be successful, if 720 evidence at all were given? the B. of P., of course, falling on the party not in that position. This test has since been generally adopted and applied; but Mr. Best, in his learned work on the Principles of Evidence, improves on it by the suggestion, that in strict accuracy the test ought to be, " which party would be successful, if no evidence at all, or no more evi dence, as the case maybe, were given`;" a consideration on which the discretion and judg ment of counsel frequently depend. But although such, in general, is the position of
the plaintiff, it sometimes happens that the B. of P. is imposed on the defendant, and in consequence of his having the affirmative of the material issue to be tried.
It is this rule as to the B. of I'. that demonstrates the real nature of the plea of not guilty in a criminal prosecution, and which divests that plea of the objections to it which. are frequently heard expressed by overscrupulous sentimentalists; for the meaning of that plea is not necessarily an assertion by the prisoner that he is absolutely guiltless or innocent, but that he wishes to be tried, and that as the B. of P. is on the prosecutor, while he has meanwhile the presumption of innocence in his favor.—Besides the work referred to, see on the subject of this article Starkie on the Law of Evidence in England, and Dickson on the same subject in Scotland.