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Burden of Proof

Exclusion of Liability for Negligence

Non Est Factum, Plea

Perils of the Sea


Pleading, The old system of
Last updated: 21-Jun-2015

Per Lord Esher MR in The Glendarroch [1894] P 226:

The old system of pleading, so far as it is a logical exercise carried into practice, was this, that the pleading should follow the burden of proof, so as to show distinctly which part of the transaction lay upon each person to prove. There was a declaration, which showed what the plaintiff had to prove in the first instance. There was the plea, which was prepared to show what the defendant was prepared to prove in answer to that; there was the replication, which admitted the plea was sufficient answer to the plaintiff unless he could answer it. But the replication might answer the plea so as to reinforce the declaration, and show that, by reason of what was in the replication, the plea had become, although prima facie an answer, not a sufficient one, and that the declaration was restored. That was the system and the logical system of the old pleading, for the purpose of the conduct of the trial, to show how the evidence and the proof was to be regulated. The declaration stated the bill of lading, and relying on the first and substantive part of the bill of lading alleged non-delivery. …

Therefore the declaration was as I say. That showed what the plaintiff had to prove in the first instance, and the moment he did prove what was in his declaration, that was his case. Then came the defendant, and he had to answer that case. Then the plea is stated: "It is true that that is the contract, but the non-delivery was the result of a peril of the sea." He followed, therefore, the terms of the exception construed in their ordinary sense, that is, that the loss was a loss by perils of the sea. …

Then you have a long succession of cases, all setting out a replication, and that replication in the given case is: "Yes, it is true there was a loss by perils of the sea within the prima facie exception, but that was brought about by the negligence Then you have a long succession of cases, all setting out a replication, and that replication in the given case is: "Yes, it is true there was a loss by perils of the sea within the prima facie exception, but that was brought about by the negligence.


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