LAW OF EVIDENCE 545
impossibility of the supposed event and even this would require an enormous mass of presumptive evidence.
A negative averment must be distinguished from a contradiction of a positive averment, technically known as a “traverse”.
Illustrations :
Malicious Prosecution.
In an action for Malicious Prosecutions the Plaintiff makes two main allegations.—
(1) That the Defendant prosecuted him,
(2) That the Defendant had no reasonable cause for the prosecution.
The first being affirmative the second a negative averment. The burden of proof of both of them is on the Plaintiff.
Negligence.
The Defendant did not take reasonable and proper care.
This is not a negative but a negative Averment
- Two things must be noted with regard to the rule of evidence that the affirmative of a proposition must be proved
12 Mad. 526-15 Jur. 544-545.
What is a traverse.
- It is a matter which relates to the law of pleadings. Before Judge is asked to decide any question which is in controversy between litigants, it is in all cases desirable and in most cases necessary, that the matter to be submitted to them for decision should be clearly ascertained. The defendant is entitled to know what is it that the plaintiff alleges against him ; the plaintiff in his turn is entitled to know what defence will be raised in answer to his claim. The defendant may dispute every statement made by the plaintiff or he may admit or admit and allege other facts which put a different complexion on the case.