to a third party, the onus of proof as to the issue whether such delivery
was or was not made was upon the defendant. Having so decided, the
learned judge at the trial, evidence on the issue having been given on
both sides, found that the defendant had not discharged the onus of
proof upon him, and gave judgement for the plaintiff accordingly.

In my opinion the learned judge misdirected himself as to the onus
of proof. In order to determine the onus "of proof of any particular
issue, it is essential and fundamental first to determine the nature of the
cause of action relied upon. If that is not done, it is possible by false
analogy and illustration entirely to confuse the whole question. A
plaintiff must allege all the material facts that together make up his
cause of action, and, if any of these are Dot admitted, must prove the
same.

Where, following a contract of carriage, the owner sues the car-
rier for non-delivery of the goods, the fact of non-delivery is, in my
opinion, an essential of the plaintiff's cause of action, and, if he fails
to allege it in his plaint, the court wOuld qiiife' properly reject the plaint
and non-suit the plaintiff. It follows that the plaintiff must prove non-
delivery, and that the burden of proof of this is on him, and if at
the end of the hearing the court is left in doubt, there must be judgement
for the defendant.

It is clear from his judgement that the learned judge was left in
doubt, and if he had correctly decided the question of the burden of
proof on the sole issue before him, I should have no hesitation in saying
that this court should reverse his decision and enter judgement for the
appellant. I cannot, however, be certain that the respondent, by rea-
son of the judge's wrong decision as to the burden of proof and conse-
quent reversal of procedure at the trial, has not been prejudiced, and
in these circumstances I think the proper course is to order a new trial.

Creed CiL: I concur.
Flaxman J.: I concur.

Appeal allowed