16 Vt. 48 | Vt. | 1844
The opinion of the court was delivered by
It was decided, when this case was before us two years since, that the plaintiffs could maintain this action. The receipt was a part of the case then, and a new trial would not have been awarded if we had considered that the present plaintiffs were precluded from maintaining this action in consequence of the receipt. The receipt was evidence of the delivery of the property to the defendants, and that they received it as common carriers.
The principal question in the case, at this time, arises on the charge of the court, that, as to the casks of oil meal landed at Essex, the burden of proof was upon the defendants. It is undoubtedly true that he who asserts a fact is usually bound to prove it, and, when a culpable neglect, or omission, or breach of duty is charged, the plaintiff is bound to prove it, though he may have to prove a negative. Had this been an action of assumpsit against the defendants on their contract to deliver the meal at Troy, it might have been sufficient to prove the delivery to the defendants, and then call upon them to account for it. Tucker v. Cracklin, 2 Stark. R. 385. (3 Eng. C. L. 394.) But, in this case, to support the averment of loss, it was necessary for the plaintiffs to give some evidence of loss, and thus far the burden of proof was on them. The burden of proof may be turned on the defendant, however, by slight proof. Griffith v. Lee, 1 C. & P. 110, ( 11 Eng. C. L. 333.) As to the casks of oil meal landed at Charlotte, and subsequently taken by the plaintiffs, there is no question now before us, as it is not contended but that the charge of the court as to that portion of the cargo was correct; and as to the casks landed at Essex, we think the evidence was sufficient prima facie to prove the averment of loss, and turn the burden of proof on the defendants. It appeared that the vessel