62 HARVARD LAW REVIEW. it, there the burden of proof shifts, and rests upon the party pro- posing to show the latter fact." ^ It is common now, in Massachusetts, to say that **the burden of proof never shifts." ^ {c) Another source of ambiguity lies in the relation between legal presumptions or rules of presumption, and the burden of proof. What is true of these phrases in one sense may not be true in another. When it is said that the burden of establishing lies upon the actor, this refers to the total proposition or series of propositions which constitute his disputed case. As when in an action for malicious prosecution ^ the Master of the Rolls said : " The burden of proof of satisfying a jury that there was a want of reasonable care lies upon the plaintiff, because the proof of that . . . is a necessary part of the larger question, of which the burden of proof lies upon him." Suppose, then, that it be settled in any case, upon the principles, whatever they be, which govern the question, that the burden of establishing a given issue is upon A, and that upon some detail of this issue a rule of presumption makes in favor of A, e.g., that he has to establish a will, and that the presumption of sanity helps him as to this one element of his proposition ;* or that he has to establish the heirship of a child, including its birth of certain parents, in wedlock, and legitimately, and that the presumption applying in such cases helps him as to the last point ;^ on the supposition, I say, that in any given case the burden of establishing is thus fixed, and that the presumption 1 Powers V. Russell, 13 Pick. 69, 77 (1832).
- As in 142 Mass. p. 360; but this, even under the existing practice in Massachusetts,
is not quite true, for after the answer there need be no replication; while anything is open to the plaintiff at this stage. By the St. 1836, c. 273, special pleas in bar in Massa- chusetts were abolished in all civil actions, and the general issue substituted. This had been the law as to certain sorts of action before. Of the condition of the law as it stood after this change Mr. B. R. Curtis, afterwards Mr. Justice Curtis, said (Report of Com- missioners on the Massachusetts Practice Act, Hall, p. 139): "He who now surveys what remains sees every plaintiff left to inhabit the old building, while all others are turned out of doors." The "Practice Act " of 185 1, prepared by these Commissioners, abolished the general issue in all but real and mixed actions and substituted a stricter system. But this strictness was in part done away the next year, when the first Practice Act was repealed, and a new one enacted. Under this one, now in force, no pleadings are required after the defendant's answer (compare St. 185 1, c. 233, s. 28, with St. 1852, c. 312, s. 19), and the old looseness still exists from this point on. « Abrath v. The N. E. Ry. Co., ii Q. B. D. p. 451.
- Sutton V. Sadler, 3 C. B. N. s. 87.
- Such a case may easily be constructed out of Gardner v. Gardner, 2 App. Cas. 723,
