On whom burden of proof lies
105. On whom burden of proof lies.
The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
(a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B's father. If no evidence were given on either side, B would be entitled to retain his possession. Therefore, the burden of proof is on A.
(b) A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies. If no evidence were given on either side, A would succeed, as the bond is not disputed and the fraud is not proved. Therefore, the burden of proof is on B.
Notes
On whom burden of proof lies
102. On whom burden of proof lies
The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
Illustrations
(a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B’s father
If no evidence were given on either side, B would b entitled to retain his possession.
Therefore the burden of proof is on A.
(b) A sues B for money due on a bond.
The execution of the bond is admitted, by B says that it was obtained by fraud, which A denies.
If no evidence were given on either side, A would succeed, as the bond is not disputed and the fraud is not proved.
Therefore the burden of proof is on B.