NEGATIVE. Negative propositions are usually much more difficult of proof than affirmative, and in cases where they are in volved, 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 pecul iarly 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. 480. Thus in actions for malicious prose cution, the plaintiff must prove that there was no probable cause; Carey v. Sheets, 67 Ind. 375; 2 Greenl. Ey. § 454. The rule ap plies whenever the claim is founded in a breach of duty in not repairing highways, and in cases of mutual negligence; Hale v. Smith, 78 N. Y. 480 ; Shearm. & Red. Neg. 312. So one must prove the allegation that a negotiable promissory note was not taken in payment of a debt ; Smith v. Bettger, 68
Ind. 254, 34 Am.. Rep. 256. So the onus is on a plaintiff who assigns as a breach by tenant that he did not repair ; 9 C. & P. 734; 6 H. 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 uni versal application, that whether the proposi tion 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, wheth er he be plaintiff or defendant, the burden of proof which he must satisfactorily sus tain." 1 Whart. Ey. § 357; see 14 M. & W. %; Heinemann v. Heard, 62 N. Y. 448; Malt , man v. Williamson, 69 Ill. 423; Colorado C. & I. Co. v. U. S., 123 U. S. 317, 8 Sup. Ct. 131, 31 L. Ed. 182.