from
Bouvier's Law Dictionary, Revised 6th Ed (1856)
NEGATIVE AVERMENT, pleading, evidence. An averment in some of the pleadings
in a case in which a negative is asserted.
2. It is a general rule, established for the purpose of shortening and
facilitating investigations, that the point in issue is to be proved by the
party who asserts the affirmative; 1 Phil. Ev. 184; Bull N. P. 298; but as
this rule is not founded on any presumption of law in favor of the party,
but is merely a rule of practice and convenience, it, ceases in all cases
when the presumption of law is thrown into the opposite scale. Gilb. Ev.
145. For example, when the issue is on the legitimacy of a child born in
lawful wedlock, it is, incumbent on the party asserting its illegitimacy to
prove it. 2 Selw. N. P. 709.
3. Upon the same principle, when, the negative averment involves a
charge of criminal neglect of duty, whether official or otherwise, it must
be proved, for the law presumes every man to perform the duties which it
imposes. 2 Gall. R. 498; 19 John. R. 345; 10 East, R. 211; 3 B. & P. 302; 3
East, R. 192; 1 Mass. R. 54; 3 Campb. R. 10; Greenl. Ev. SS 80; 3 Bouv.
Inst. n. 3089. Vide Onus Probandi.