State ex rel. Lechter v. Schar

• Decision Date: 31 July 1872
• Citation: 50 Mo. 393
• Parties: THE STATE OF MISSOURI, TO USE OF JACOB LECHTER AND LEWIS MOSMEYER, Plaintiffs in Error, v. JOHN SCHAR et al., Defendants in Error.
• Court: Missouri Supreme Court

50 Mo. 393

THE STATE OF MISSOURI, TO USE OF JACOB LECHTER AND LEWIS MOSMEYER, Plaintiffs in Error,

v.JOHN SCHAR et al., Defendants in Error.

Supreme Court of Missouri.

July Term, 1872.

Error to Cole Circuit Court.

George T. White, for plaintiffs in error.

Lay & Belch, for defendant in error.

ADAMS, Judge, delivered the opinion of the court.

This was an action on a constable's bond for failure to return an execution. The answer of the sureties was a general denial of all the allegations. The plaintiff, to maintain his case, read the docket of the justice, which showed a judgment and the issuing of an execution; but there was nothing on the docket, nor any other evidence, to show that the execution was delivered to the constable.

On this evidence the plaintiff asked the court to declare the law to be that if the execution was delivered to the constable it devolved upon the constable to show that it had been duly returned. This instruction was refused, and the court having found for defendants, the plaintiff filed a motion for a new trial, accompanied by the affidavit of his attorney that he was taken by surprise by the decision of the court in refusing his instruction. The motion for a new trial was overruled and judgment given for defendants.

The general rule is that he who alleges an affirmative is bound to prove it. But there are some exceptions to this rule. Where the plaintiff grounds his right of action upon a negative allegation, and the proof of the affirmative is not peculiarly within the knowledge and power of the other party, the establishment of this negative is an essential element of the plaintiff's case. Where, however, the subject-matter of a negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true unless disproved by that party. (1 Greenl. Ev., § 79.) This is the case in regard to informations or indictments against persons for keeping a dram-shop without license. The State proves the selling of the liquor, and rests, and the defendant must produce his license. There is some conflict in the authorities on this question, but I think the better rule in such case is that the onus is on the defendant to produce his license. (See Schmidt v. The State, 14 Mo. 137; The State v. Morrison, 3 Dev., N. C., 299; Haskill v. The Commonwealth, 3 B. Monr. 342; Geuing v. The State, 1 McCord, 573; Shearer v. The State, 7 Blackf., Ind., 99; Turner's case, 5 Maule & S. 206; Apothecaries' Co. v. Bently, 1 Carr. & P. 538.)

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