contrary embossed it in a bad and unworkmanlike manner;
to which the defendant pleaded that he did emboss the
calico in a workmanlike manner^ on which issue was
joined ; it was held by Alderson B. that the onusprobandi
lay on the plaintiff; that questions of this kind were not to
be decided by simply ascertaining on which side the
affirmative in point of form lay ; and he laid down, (what
appears to be a correct rule on the subject) that the proper
test is which party would be successful if no evidence at all
were given ; that in the principal case, supposing no evi-
dence were given on either side, the defendant would be
entitled to the verdict, for it was not to be assumed that
the work was badly executed ; and consequently that the
onus proband i lay on the plaintiff. And in the case of
Mills V. Barber, (1 Mees. & Wels. 425 ; Exch. Pasc. 1836,)
which was an action of assumpsit by the indorsee of a bill
of exchange against the acceptor, to which the defendant
pleaded that the bill had been accepted without considera-
tion for the accommodation of S. B. the drawer, and had
been subsequently indorsed to the plaintiff without con-
sideration, to which the plaintiff replied that the said
S. B. indorsed the said bill to the plaintiff for good consi-:
deration, and issue was taken thereon ; it was held by
Alderson B. at the trial, that the onus probandi lay on the
defendant notwithstanding the affirmative shape of the re-
plication, and which ruling was now confirmed by the
court in banc ; and Alderson B. said, ^^ the replication is in
the affirmative, but it is in answer to a negative : upon
this question is it not the proper test to examine whether,
if the particular allegation he struck out of the plea, there
would or would not be a defence to the action f "

If the test here suggested be compared with that given
by the same learned judge in Amos v, Hughes, it will be
found, that so far from being contradictory or inconsistent.
