required to prove it. So, where the defence to an action on a policy of insurance was, that the plaintiff improperly concealed from the underwriter certain facts and information which he then already knew and had received, it was held that the defendant was bound to give some evidence of the non-communication.2 So, where the goods of the plaintiff are seized and taken out of his possession, though for an alleged forfeiture under the revenue laws, the seizure is presumed unlawful until proved otherwise.3 § 81. So, where infancy is alleged; or, where one born in lawful wedlock is alleged to be illegitimate, the parents not being separated by a sentence of divorce; 5 or, where insanity is alleged; or, a person once living is alleged to be dead, the presumption of life not being yet worn out by lapse of time; or, where nonfeasance or negligence is alleged, in an action on contract; or, where the 1 United States v. Hayward, 2 Gall. 498; Hartwell v. Root, 19 Johns. 345; Bull. N. P. [298]; Rex v. Hawkins, 10 East, 211; Frontine v. Frost, 3 B. & P. 302; Williams v. E. India Co. 3 East, 192. See also Commonwealth v. Stow, 1 Mass. 54; Evans v. Birch, 3 Campb. 10. [So in an action against an officer for negfecting to attach property as the property of the plaintiff's debtor, the burden of proving that the property was so far the debtor's as to be liable to attachment as his, is upon the plaintiff throughout, although the defendant claims the title to himself under a purchase from the debtor. Phelps v. Cutler, 4 Gray, 189.] 2 Elkin v. Janson, 13 M. & W. 655. 8 Aitcheson v. Maddock, Peake's Cas. 162. An exception to this rule is admitted in Chancery, in the case of attorney and client; it being a rule there, that if the attorney, retaining the connection, contracts with his client, he is subject to the burden of proving that no advantage has been taken of the situation of the latter. 1 Story, Eq. Jur. § 311; Gibson v. Jeyes, 6 Ves. 278; Cane v. Ld. Allen, 2 Dow, 289, 294, 299. [So in trespass brought by the owner of land against a railroad corporation, where the plaintiff has shown his title to the land, the entry by the defendants and the construction of their road upon it, the defendants must justify by showing that this land is covered by the authorized location of their road. Hazen v. Boston & Maine R. R. 2 Gray, 574, 579. Where such land is shown or admitted to be so covered by the location, the burden does not rest on the corporation or its servants, to show that acts done 5 Case of the Banbury Peerage, 2 Selw. N. P. (by Wheaton) 558; Morris v. Davies, 3 Car. & P. 513. 6 Attorney-Gen. v. Parnther, 3 Bro. C. C. 441, 443, per Lord Thurlow; cited with approbation in White v. Wilson, 13 Ves. 87, 88; Hoge v. Fisher, 1 Pet. C. C. R. 163. 7 Throgmorton v. Walton, 2 Roll R. 461; Wilson v. Hodges, 2 East, 313; supra, § 41. 8 Crowley v. Page, 7 C. P. 790; Smith v. Davies, Id. 307; Clarke v. Spence, 10 Watts, R. 335; Story on Bailm. §§ 454, 457, note (3d edit.); Brind v. Dale, 8 C. & P. 207. See further, as to the right to begin, and, of course, the burden of proof, Pontifex v. Jolly, 9 C. & P. 202; Harnett v. Johnson, Id. 206; Aston v. Perkes, Id. 231; Osborn v. Thompson, Id. 337; Bingham v. Stanley, Id. 374; Lambert v. Hale, Id. 506; Lees v. Hoffstadt, Id. 599; Chap man v. Emden, Id. 712; Doe v. Rowlands, Id. 734; Ridgway v. Ewbank, 2 M. & Rob. 217; Hudson v. Brown, 8 C. & P 774; Soward ». Leggatt, 7 C. & P. 613; Bowles v. Neale, Id. 262; Richardson v. Fell, 4 Dowl. 10; Silk v. Humphrey, 7 C. & P. 14. want of a due stamp is alleged, there being faint traces of a stamp of some kind; or, where a failure of consideration is set up by the plaintiff, in an action to recover the money paid; 2 or, where the action is founded on a deficiency in the quantity of land sold, and the defendant alleges, in a special plea, that there was no deficiency; the burden of proof is on the party making the allegation, notwithstanding its negative character. [§ 81a. In actions upon promissory notes or bills of exchange, if it be shown that they were stolen, or otherwise fraudulently put in circulation, the burden of proof is on the holder to show that he took them in good faith. Monroe v. Cooper, 5 Pick. 412; Worcester Co. Bank v. Dorchester, &c. Bank, 10 Cush. 488, 491; Wyer v. Dorchester, &c. Bank, 11 Cush. 52; Bissell v. Morgan, Ib. 198; Fabens v. Tirrell, 15 Law Reporter (May, 1852), 44; Perrin v. Noyes, 39 Maine, 384; Goodman v. Harvey, 4 Ad. & El. 870; Arbourn v. Anderson, 1 Ad. & El. N. R. 504. According to recent decisions, that burden is very light. Worcester Co. Bank v. Dorchester, &c. Bank, Wyer v. Dorchester, &c. Bank, ubi supra. But where the action is by the holder of a bank-bill, and the defendant proves it to have been stolen, the plaintiff is not bound to show how he came by the bill, to enable him to recover upon it, but the defendants, to defeat the plaintiff's right to recover upon it, must show that he received it under such circumstances as to prevent the maintenance of his action. Wyer v. Dorchester, &c. Bank, ubi supra; Solomons v. Bank of England, 13 East, 135, note; De la Chaumette v. Bank of England, 2 Barn. & Adolph. 385. § 816. It would seem to be the true rule in criminal cases, though there are some decisions to the contrary, that the burden of proof never shifts, but that it is upon the government throughout; and that in all cases, before a conviction can be had, the jury must be satisfied, upon all the evidence, beyond a reasonable doubt, of the af firmative of the issue presented by the government, to wit, that the defendant is guilty in manner and form as charged in the indictment. The opinion of the court, by Bigelow, J., in the case of Commonwealth v. McKie, 1 Gray, 61-65, contains an acceptable and very able exposition of the general rule of law as to the burden of proof in criminal cases, but it is too extensive to be here inserted. § 81c. Although the above decision is carefully limited to that precise case, yet it would seem that its principle would cover all cases, including those in which the defendant relies on some distinct substantive ground of defence not necessarily connected with the transaction on which the indictment is founded, as insanity for instance. For in every case the issue which the government presents is the guilt of the defendant, and to prove this the jury must be satisfied not only that the defendant committed the act constituting the corpus delicti, but also that at the time of the commission thereof, he had intelligence and capacity enough to have a criminal intent and purpose; because, "if his reason and mental powers are either so deficient that he has no will, no conscience or controlling mental power, or if, through the overwhelming violence of mental disease, his intellectual power is for the time obliterated, he is not a responsible moral agent, and is not punishable for criminal acts." By Shaw, C. J., in Commonwealth v. Rogers, 7 Met. 501; see Commonwealth v. Hawkins, 3 Gray, 465; 1 Bennett & Heard's Lead. Crim. Cases, 87, note to Commonwealth v. Rogers, and p. 347, 1 Doe v. Coombes, 3 Ad. & El. N. s. 687. 2 Treat v. Orono, 13 Shepl. 217. 8 McCrea v. Marshall, 1 Louis. An R. 29. note to Commonwealth v. McKie. And if the burden is on the government thus to satisfy the jury, it is difficult to see why the rule of proof beyond a reasonable doubt does not apply; and why a reasonable doubt of the sanity of the defendant should not require the jury to acquit. In the more recent case of Commonwealth v. Eddy, 7 Gray, 583, which was an indictment against the defendant for the murder of his wife, and in which the insanity of the defendant was pressed to the jury as a defence, the court instructed the jury in substance that the burden of proof was on the government throughout, and did not shift; although, so far as the sanity of the defendant was concerned, the burden was sustained by the legal presumption that all men are sane, which presumption must stand until rebutted by proof to the contrary, satisfactory to the jury. CHAPTER IV. OF THE BEST EVIDENCE. [*§ 82. The best class or kind of evidence, in the power of the party, must be produced. 83 and 92. But proof that one acted, and was recognized as an officer, will be suf ficient. 84. Evidence is primary and secondary. Distinction considered. 85. This distinction has reference to the substitution of oral for written evidence. 87. All contracts reduced to writing, when directly in issue, must be produced. 91. Records and public documents proved by examined copies. 93. General results from voluminous documents may be proved orally. 94. Inscriptions on monuments proved orally. 95. In examinations on voir dire, documents need not be produced. 96. The party's admission of the existence of a writing admissible, but not as to its nature. 96. The rule carried further in some cases. No restriction upon cross-examination. 97. Numerous apparent exceptions to the foregoing rule.] § 82. A FOURTH RULE, which governs in the production of evidence, is that which requires the best evidence of which the case in its nature is susceptible. This rule does not demand the greatest amount of evidence which can possibly be given of any fact; but its design is to prevent the introduction of any, which, from the nature of the case, supposes that better evidence is in the possession of the party. It is adopted for the prevention of fraud; for when it is apparent that better evidence is withheld, it is fair to presume that the party had some sinister motive for not producing it, and that, if offered, his design would be frustrated.1 The rule thus becomes essential to the pure administration of justice. In requiring the production of the best evidence appli 1 Falsi præsumptio est contra eum, qui testibus probare conatur id quod instru mentis probare potest. Menoch. Consil. 422, n. 125. VOL. I. 9 cable to each particular fact, is meant, that no evidence shall be received which is merely substitutionary in its nature, so long as the original evidence can be had. The rule excludes only that evidence which itself indicates the existence of more original sources of information. But where there is no substitution of evidence but only a selection of weaker, instead of stronger proofs, or an omission to supply all the proofs capable of being produced, the rule is not infringed. Thus, a title by deed must be proved by the production of the deed itself, if it is within the power of the party; for this is the best evidence of which the case is susceptible; and its non-production would raise a presumption, that it contained some matter of apparent defeasance. But, being produced, the execution of the deed itself may be proved by only one of the subscribing witnesses, though the other also is at hand. And even the previous examination of a deceased subscribing witness, if admissible on other grounds, may supersede the necessity of calling the survivor.2 So, in proof or disproof of handwriting, it is not necessary to call the supposed writer himself.3 And even where it is necessary to prove negatively, that an act was done without the consent, or against the will of another, it is not, in general, necessary to call the person whose will or consent is denied.4 § 83. All rules of evidence, however, are adopted for practical purposes in the administration of justice; and must be so applied as to promote the ends for which they were designed. Thus, the rule under consideration is subject to exceptions, where the general convenience requires it. Proof, for example, that an individual has acted notoriously as a public officer, is prima facie evidence of his official character, without producing his commission or appointment.5 1 Phil. & Am. on Evid. 438; 1 Phil. Evid. 418; 1 Stark. Evid. 437; Glassford on Evid. 266-278; Tayloe v. Riggs, 1 Peters, 591, 596; United States v. Reyburn, 6 Peters, 352, 367; Minor v. Tillotson, 7 Peters, 100, 101; [* Shoenbergher v. Hackman, 37 Penn. St. 887]. 2 Wright v. Tatham, 1 Ad. & El. 3. [See infra, § 569-575.] Hughes' case, 2 East, P. C. 1002; McGuire's case, Ib.; Rex v. Benson, 2 Campb. 508. Supra, $77; Rex v. Hazy & Collins, 2 C. & P. 458. 5 United States v. Reyburn, 6 Peters, 352, 367; Rex v. Gordon, 2 Leach, Cr. C. 581, 585, 586; Rex v. Shelley, Id. 381, n.; Jacob v. United States, 1 Brockenb. 520; Milnor v. Tillotson, 7 Peters, 100, 101; Berryman v. Wise, 4 T. R. 366; Bank of U. States v. Dandridge, 12 Wheat. 70; Doe v. Brawn, 5 B. & A. 243; Cannell v. Curtis, 2 Bing. N. C. 228, 234; Rex v. Verelst, 3 Campb. 432; Rex v. Howard, 1 M. & Rob. 187; McGahey v. Alston, 2 M. & W. 206, 211; Regina v. Vickery, 12 Ad. & El. 478, N. s.; infra, § 92. But there must be some color of right to the office, or an acquiescence on the part of the public for such length of time as will |