Cooper v. Bakeman , 32 Me. 192 ( 1850 )

Wells, J.,

orally.—Under our statute, non cepit with brief statement of property in the defendant and not in the plaintiff, does not admit property in the plaintiff. Such pleading creates substantially an issue on the plaintiff’s property. It is therefore incumbent on the plaintiff to prove property in himself. At common law, in a plea of property in the defendant, the onus is on plaintiff to prove property in himself, because if the issue be found merely that the property is not in the defendant, the plaintiff cannot have judgment. The plaintiff alleges the property to be his. The burden is on him to prove it.

In this case, the Judge ruled that the burden of proof was on the defendant to show property in himself. This was erroneous.

It would have been right, under our statute, if the pleading had not denied property in the plaintiff.

Exceptions sustained