#### WILLIAM TOMLINSON v. JOSEPH PAYNE.

At law, tire rule is, that feuid never is presumed, and he who alleges it must prove it.

It may be taken as a general proposition,' that every man is presumed to be honest in his dealings, until the contrary is proved.

This was an action on the case for a deceit in the sale of a saw-mill, tried before Bailey, J., at the last Superior Court of Wilson count}’.

The defendant being a part owner of the mill in question, *109sold an interest therein (one third part) to. the plaintiff for $600. The plaintiff said of the mill, before he bought it, that he did not know whether it was a good one or otherwise. The defendant said the mill was a good one, and that it had no deffciences that he knew of. There was evidence also, that the property was as the defendant represented it to be.

The Judge, in charging the jury, explained to- them the difference between an action for a warranty and an action on the case for a deceit; that in the former, a recovery could he effected by showing a breach of the warranty only, an,d that, whether the defendant was. an honest man. or otherwise, but in the latter, he could not recover, unless it was shown that the defendant was guilty of a moral fraud ; that in this case, as the plaintiff had declared that the defendant. was guilty of practicing a fraud upon him in the sale of the mill, he was bound to prove it; that the burden of proof was upon him to establish his allegation to the satisfaction of the j ury, for the law presumed that every one was honest in his dealing, until the contrary was proved. Plaintiff excepted.

Yerdict and judgment for the defendant, and appeal by the plaintiff.

Strong and A. M. Lewis, for the plaintiff.

Dortch, and B. F. Moorey for the defendant.

Pearson, C. J.

His Honor very properly instructed the jury, that as the plaintiff alleged the defendant had practiced a fraud on him, he (the plaintiff) was bound to prove the allegation, and if he had failed in making the proof, as a matter of course, the issue should be found against him. Here, he might have stopped, but in truth, what he adds, taken in connection with the preceding sentence, is simply the expression, in different words, of the same idea, to wit, that the burthen of proof was on the plaintiff Fraud is presumed, in some instances, by a court of equity, e. g., where one deals with another, who is dependant on him from the relation existing *110between them; bat at law, the rule is, fraud is never presumed, and he 'who alleges fraud must prove it.

This disposes of the case; but, as an isolated proposition, we take it to be true, that-every one is presumed to be honest in his dealings, until the contrary is proved; in the same sense, that every one is presumed to be compos mentis ; that is, we take it for granted, he is so, until the contrary is proven ;Hor instance, one who alleges the execution of a deed or will, impliedly alleges that the maker had mental capacity, and on proof of the formal execution of the instrument, the capacity is taken for granted, in the absence of evidence to the contrary. It is, however, unnecessary to enter upon this question, as it is a mere matter of speculation, for in our case, the onus of proof being on the plaintiff, it was for him to satisfy the jury that a fraud had been practiced' by the defendant. There certainly is no presumption of -law, that every man is dishonest in his-dealings, until the-contrary is proved, and$ without the aid of such a presumption, the plaintiff could not be subjected to the o'ims proTxmdi, which is the principle of law that governs all cases where the evidence does not- preponderate on the one side ox* the other. There is no errox-i

Per Curiam,

Judgmént affhinedi