19 Wend. 361 | N.Y. Sup. Ct. | 1838
By the Court,
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
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.
Ordered accordingly.
Sed vide Pike v. Gandall, 9 Wendell, 153. Reporter.