3 EAST, 1%. WILLfAMS 9.

TEE EAST INDIA COXPANY 57 1

tion of persons to be taken aa apprentices, and was not merely an abridgement of the
number of them.
(192f The case st ithout further notice from the Court, till the parties
applied again on a former day in this term, to know whether they had disposed of the
rule. And on this day
Grose J. delivered the opinion of th ourt (a), which, he observed, had stood over
thus long by mistake ; as the rule for eremptory mandamus was granted nisi (b),
&e. at the time it was argued ; the Cou ing of opinion that the by-law was bad, as
being a restriction of the qualification under the custom.
Rule absolute.

~ I ~ L a ~ A ~~ TEE ~ INDIA
S a EAST ~ ConwArJu.
~ ~ Monday, Nov. 29th, 1802. Where
the law presumes the affirmative of any fact, the negative of such fact must be
proved by the party averring it in pleading. So where any act is required to be
done by one, the omission of which would make him guilty of a criminal neglect
of duty, the law presumes the afirmative, and throws the burthen of proving the
negative on the party who insists on it. Therefore where a plaintiff declared
that the defendant^, who had chartered his ship, put on board a dangerous com-
modity (by which a 103s ha without due notice to the captain or any other
person employed in the n i t lay upon him to prove such negative aver-
ment. And it being she was delivered by tbe defendants’
officer, and received by t intiff’s ship (which first mate was
dead, and no other person was ose to the conversation which
passed between them) ; Held th ence of the fact could only be
given by the defendants’ officer e c o ~ m o ~ ion
t y board to such
first mate, and that the action c ed by secondary evidence.
[See Ajlalo v. Lawenc Bullen, Limited [1903}, 1 Ch. 326 ; [1904], A. C. 17.1
The declaration CO four counts, the first of which was abandoned. The
!econd stated that the plaintiff, before and a t the time of making the charter-party of
affreightment af~r~mentioried, and from thence contiriually afterwards until the com-
mibting the grievance and happening of the loss after-mentioned, was the owner of a
ship called the “ Princess Amelia,” whereof, one J. Ramsden, for and during all the
time aforesaid, was master ; which said ship, a t the time of making the said charter-
parry, was at anchor in the river Thames. That the plaintiff, on the 14th [193] of
February 1797, by a certain charter-party made between him, &e. and Ramsden, as
captain of the ship of the one.par$, and the East India Company of the other part,
let her to freight to the Coppany ; (in which charter-party was a covenant for the
owners to receive an4 take on board the ship, and well and securely stow and place
therein, all such- goods, &e. as should be laden or tendered to bB laden on board by the
order of the Company or their servants, &e.>. That the ship sailed under such charter-
party on the 20th of July 1797 to the East Indies on her voyage, and duly discharged
her outwadbound cargo, and remcined in the Company’s service in tha East Iodies,
by virtae.of the said charter-party, until and a t the time of the committing of the
grievance and happening of the loss after-mentioned. Yet-the Company, by their agents,
while the ship so r e ~ a i n e din their service, &e. wrongfully, unlawfully, and ~njustly,
sent, and caused and procured to be sent, amongst other goods and merchandize,
to and on board the .sai ip or vessel, for the purpose of being conveyed therein
from Bombay in the dies to Tellicherry, a certain package, containing therein
certain oil and varni ibk and inflammable nature, without giving due
or sufficient notice or intimati eof to the said J.. Ramsden,so being master of
the said ship, or to any other person or persons concerned or employed in the navl-
gation thered, as-the said defendants ought to have done, in order that the said
Ramsden, or such person or persons concerned or employed as last aforesaid, might
stow and deposit the said last-mentioned package in such part of the said last-mentioned
(Q) The case was argued and stood over for consideration before Lord Ellen-
borough took his seat on the Bench.
(5) I.e. to take effect if the Court do not alter their opinion in tha course of the
same term.
1572 WILLIAH8 U
‘ . TEE 3 EAST, 1%.

ship, as not to endanger the safety and security of the same in the conveyance of the
said package. That by reason of such notice or intima-fl941-tion not having been
given, the said package. was not placed and stowed in manner aforesaid, but was placed
in the afterhold of the ship, for the purpose of being conveyed as aforesaid, the same
being an unfit and unsafe part of the ship for the stowing the said package, and the
safety of the ship being greatly and unnecessarily en by the conveyance of
the pacliage in that part. That afterwards 1798, the ship sailed
under the Company’s orders, with the said om Bombay to Telli-
cherry ; and,that in the course of that pril, on the high seas,
the said oil or varnish, by reason of its e and ~comb~stible nature, se%
fire to the ship; and the same, with her cargo, by reason of the said package of oil or
varnish being so placed in the after-hold, for want of snch,due notice or intimation^ as
age of 20,~00i. The
re generally, that the
said ship whilst she
igence, and improper
ship was b u r n ~ dand

part of the Company, to carry them on board, and the duty of the chief mate of the
ship principally to receive the cargo and stow it in the ship. On this occasion the
evidence went to show that the chhf mate was the person who had received the rogYlan,
with other military stores, on board; but he being dead, no evidence was given of’
what passed between him and the cor~ductorof the m i l i ~ stores r ~ or whatever othes
person had been in fact employed to convey the article on board. It was proved,
however, by the captain of %heship and the second mate, that no com~unicationhad
been made to either of them, or, to their knowledge, 40 any other person on board the
ship, concerning the inflammable nature of tide called roghan j that they them-
selves were altogether unslcquainted either he nature or even the name of it;
and indeed it appeared evident enough from the whole of the testimony of these and
other persons on board the ship a t the time, that neither the nature nor the name of it
were generally knotvn, It wm also pro t the chief mate was an officer of skill
and d~scretion. That the &fterho~dwhe an was stowed was a proper place
for such a package, if it were not know n an ~ n f l a ~ ~ subs~a~ee,
a b ~ e but an
improper place to stow an article of su as this really was; and that by
means of its oozing out of the jar, the on fire and totally destroyed soon
after putting to sea,
Lord El~enboroughCh.3. was of o t the p l a i n t i ~bad failed in
proving a material allegation,in the declaration, and w was material to him E1961
to prove, in order to s u p p ~ r tthe action j naikely, that no notice was given .to the
chief mate of the dangerous nature of the c o m ~ ~ i att ythe time when it was received
by him on board from the Company’s officer: for non constat but that the fullest
notice had been given. That the proof of thjs allegation lay on the plaintiff, and the
best evidence of it was still in his power to produce, notwithstanding t b death of the
chief mate, by calling the Company’s o%eLerwho delivere~the article on board, who
could be& tell whether or not he had given such notice, as no other parson appeared
to have been privy to what passed between them at the time : and for want of this
evidence he nonsuited thrrplaintig.
Adam, Wood, and Bosanquet, on a former day shewed cause against a rule nisi, which
had been obtained for setting aside the nonsuit and granting a new trial. Supposing
it to have been the duty of the C o m ~ a n y ’oEeer~ to give notice of the dangerous
nature of the ~ o ~ ~ o dwheni t yit was delivered on board- the p 1 a i ~ t ~ ~ship, ’ s it must
be presumed, in the‘absence of all proof to the contrary, “that such notice was given,
as it cannot be resumed that the oflicer aoted ~ ~ t to rhis duty: ~ ~ It y was t ~ ~ r ~ f o r e
3 EAST, 197. FPILLXAMS 11. TEE EAST INDIA COMPANY 573
a necessary part of the plaintiffs case to shew that no such notice had heen given,
that being the gist of the action, the wrong comp~ainedof, without which the action
cannot be sustained; being damnum sine injuriL Com. Dig. Action on the Case, A.
But a t any rate, the plaintiff having averred the want of such notice in his declaration,
and madeit the foundation of his complaint, it was incumbent on him to prove it;
the subject matter of the allegation, though conveying a negative in terms, being
capable of affirmative proof, by calling either of the persons by Q.971 or to whom the
commodity was delivered on board, or any other who might happen to have been
present at the time, to speak to what passed on the occasion. And the chief mate who
h thave called the officer as a witness
received the roghau being dead, the p l a ~ n t i ~ o u gto
by whom the delivery was made, who was capable of saying with certainty whether
he had given such notice.
Erskine, Dallas, and Williams, in support of the rule, contended that, this being a
negative averment on the part of the plaintiff, the affirmative of which was the ground
-of defence to the action, it lay upon the defendant, whose duty it was to give the
notice, to prove a~rmativelythat it was in fact given. The general rule is, that the
party on whom the aftirmative of the issue lies is to begin by proving it. Now upon
the plea of not guilty to an action on the case, which puts in issue every material fact,
the same rule must prevail. If, instead of the general issue, the form of pleading
required the defendants to plead specially, they must have proceeded to aver, amongst
other things, that they had given dne notice of the dangerous nature of the commodity,
and issue would have been specifically joined on that fact, which it would then have
been incumbent upon them to prove, according to the general rule above-mentioned.
Then the form of the pleading cannot vary the course of the proof. It often happens
that a fact, which is the proper subject matter of defence to zt defe~idant,and the
affirmative of which i t is incumbent upon him to prove, must yet be negatived by
averment in the plaixbtiffs declaration ; as in actions for penalties on the game laws,
where the want of theBevera1 qua~ifications?mentioned in the enacting clause of the
statute giving the penalty, must be averred in the declara-[198]-tion : and yet it was
never required of a plaintiff to prove such negative averments (a)?not being faets pre-
sumed to be within his own knowledge ; but the practiee has always been to throw the
onus proband^ on the defendant who insists on the affirmative. But a t any rate there
was sufficient evidence of the negative given by the plaintiff to leave to the jury,
whose proper province it was to decide upon it. For the averment is, that no notice
of the dangerous nature of the commodity was given to J. Ramsden the master, or
any other person employed in the navigation of the ship; and it was proved by
Captain Ramsden, and the next surviving officer of the ship, who had the principal
conduct of her, that no notice had been received by them, which was a t least sufficient
to throw the onus probandi on the defendant, that notice had been given to the chief
mate who was dead. Besides, it might also be considered as some evidence of the
negative, that the chief mate, who was an officer of skill, had stowed the package in a
situation which no person, knowing the dangerous nature of its contents, would,
without the grossest ignorance of his duty, have done.
Curia advisare vult.
Lord El~enboronghCh.J. now delivered the opinion of the Court (after stating
the case, and that the plaintiff was nonsuited a t the trial, on account of his not having
proved that no notice or i n f o ~ a t i o nof the dangerous quality of the article put on
board was given to the persons concerned or employed in the navigation of the ship).
It has been con~endedthat the nonsuit should be set aside on two grounds ; first, that
the allegation of its being sent on board without notice is the allegation of a negative,
[199] and that therefore the proof of the affirmative, viz. that it was sent on board
with notice, should come on the other side, that is, on the part of the defendant.
Secondly, it has been contended, that supposing the burthen of proving that the
article called roghan was sent on board in this ease without notice should, in point of
law, rest upon the plaintiff, yet that the plaintiff has in this case given sufficient prim$,
facie evidence of the want of notice to have gone to a jury. As to the first point,
namely, that the burthen of proof rested in this case on the defendant, and that he
was bound to prove the fact of notice ; it was argued -by the plaintiff, that if, instead
of pleading the general issue, the defendants had by their plea specially denied the
.~

(a) TTideRa v. ~ tante,~ 1 vol.

, 639, 651, 3, 5.
574 WILLIAMB V. THE EAST INDIA CO&Q’ANY 3 EAST, 200,

several facts alleged in the plaint~ff’sdeclarat~on,that in pleading the defendants must,

in the denial of the allegation that the roghan was put on board without notice, have
been obliged to allege a ~ r m a t ~ v e lthat y , they had given notice,’or that the plaintiff
had notice. Now admittjng that such would have been the form of the plea and issue,
yet there is a rule of law by which, even in such case, and upon an issue so framed,
the burthen of negativing in proof such a ~ r m a t i v ea~legationof the defendants would
have been thrown on the p l a i ~ t i ~ ; that rule of laK is, that where any act is
and
required to be done on the one part, so that the parbp neglecting it. would be guilty
of a criminal iieglect of duty in not having done it, the law presumes the a ~ r m a t ~ ~ ? e ~
and throws the burthen of prov~ngthe contrary, that is, in such case of proving a
negative, on the other side. ~~~~e v. Butler, 1 %I. Xep. 83. ‘$In a suit for tythes
in the Spiritual Court, the defendant pleaded, that the plaintiff had not read the
XXXIX Articles j and the Court p u ~the defendant to prove it, though a negative.
Whereupon he moved the Court [ZOO] for a prohibition ; which was der$ed : for in
this case the law will presume that a parson had read the articles ; for otherwise he
is to lose his benefice : and when the law presumes the aZtirmative, then the negative
is to be proved.’’ This, it will be observed, w~ in a civil suit, So upon the same
p r i n ~ i p ~ine Lwd ~ a l ~ u case, ~ ’ sBull. K. P. 298, and also in Tiner, tit. Evidence j upon
an informat~onagainst Lord Halifax for refusing to deliver up the rolls of the auditor
of the Court of Exchequer, the Court of Exchequer put the p l a i n t i ~upon proving the
negative, viz. that he did not deliver them : for “ a person shall be presumed duly to
execute his o%ce until the conti‘ary appear.” And also in The Kkg v. Coombs, Comb,
67, the defenda~itswore an affir~ative ; and an iIiformation was exhibited against him
for it. And although a negative could not be proved, yet the Conrt directed that
they, that is to say the prosecutors, should Grst give their roba able evidence, and that
the defendant should afterwards prove the affirmative if he could. And the same
principle i s recognized in Gilbert’s Law of Evidence, p. 148, viz. that where the law
supposes the matber contained in the issue, there the opposite party, (that is, the party
who contends for the contrary of that which the law supposes,) must be put into proof
of it by a negative. That the declaration, in imputing to the defendants the having
wrongfully put on board a ship, without notice to those concerned in the managemerit
of the ship, an article of an highly dangerous combust~bl~ nature, imputes to the
de€en~?aiits a e r i ~ i n a lneg~igcnee,cannot well be quest~oned. In order to make the
putting on board wroIigfu1, the defendants must be conusant of the dangerous quality
of the article put or1 board ; and if being so, they yet gave no notice, considering the
probable danger thereby occasioned to the lives of [ZOl] those on board, it amounts
to a species of de~iuque~cy in the persons concerned in so puttjng such dangerous
article on board, for which they are c r i ~ i n a ~ lliable, y and pun~shableas for a mis-
demean& at least. We are therefore of opinion, upon the principle and the authorit~es
above stated, that the burthen of proving that the dangerous article in question was
put on board without notice, rested upon the plaintiff, alleging it to have been wrong-
fully put on board without notice of its nature and gyality. The next question is,
whether ‘the plaintiff have given sufficient prim%facie evidence of the want of notice
to have gone to a jury ?“ And we are of opinion that he has not. The best evidence
should have been given of which the nature of the thing was capable. The best
eviderice was to have been had by adling in the first instance upon the persons
~ ~ m e d i a t and e ~ ~o r~ c ~ a lel m
y ~ ~ o y eind the delivery and in the receiving the goods 011
board, who appear in this ease to have been the first mafe on the one side, and the
~ i l i t & rconductor
y on the other. And though the one of these persons, the mate, was
dead, it did not warrant the plaintiff in resorting to an inferior and secondary species
of testimony, viz. the presumption and inference arising from a non-communic~tior~
to other persons on board, as long as the niilitary conductor, the other living witness
i ~ ~ e d i a tand e l p~ r i m a r ~concerned
l~ in the transaction of shipping the goods on board,
could be resorted to : and no ~mposs~bi~ity of resorting to this evidence of the military
conductor, the proper and primary evidence on the subject, is suggested to exist in
this case. We are therefore of opinion that the-nonsuit was proper, and that the rule
for setting it aside must be discharged.
Rule discharged.