The burden of proof lies on the party claiming an immoral consideration, and the presumption against illegality holds in civil proceedings.

Arnold White, C.J.

1. The plaintiff sued on a promissory note executed in her favor by the defendant. The execution of the note was admitted by the defendant. The defendants plea was that he executed the note in consideration of an undertaking by the plaintiff that the plaintiff would bring her daughter to the defendants village in South Arcot, and put her under his protection as his concubine during the rest of her life, and that she (the plaintiff) failed to carry out the undertaking. The issue was "was the consideration for the plaint promissory note immoral, and is it void for failure of consideration as alleged in the written statement?

"It seems to me that the latter portion of the issue is unnecessary. If the defendant was able to show that the consideration for the note was immoral, the question whether the consideration failed or not would be immaterial.

2. At the trial the execution of the note having been admitted by the defendant, and the onus being on him, he went into the box for the purpose of proving his plea of immoral consideration, and certain witnesses were examined on his behalf. At the close of the defendants case it was submitted on behalf of the plaintiff that the defendant had proved no case, The learned judge declined to stop the case at that stage and the plaintiff and her witnesses were examined, It was argued on behalf of the appellant that the learned judge by declining to stop the case at the close of the evidence of the defendant and his witnesses, in effect ruled that the burden of proof had become shifted and that it thus became incumbent on the plaintiff to show, by affirmative evidence, that consideration had been given for the note. It is perfectly clear that the learned judge never ruled and never intended to rule that as the result of the evidence adduced on behalf of the defendant the burden of proof had shifted. He allowed the case to go on because he thought it desirable to hear the whole of the evidence before deciding the issue which he had to determine. Having heard the whole of the evidence, he came to the conclusion that the defendant had failed to discharge the burden which lay on him of proving, affirmatively, that the note had been given for an immoral consideration. The Judge no doubt holds that the plaintiff failed to prove her allegation that she had given cash and jewels for the note, I need not stay to consider whether on the evidence I should have come to the same conclusion as the learned judge with reference to the plaintiffs testimony, as it certainly does not follow that because the plaintiff failed to prove her case that the defendant must be taken to have established his, The question to be determined was not--was the consideration of future cohabitation with the plaintiffs daughter, as alleged by the defendant, or hard cash, as alleged by the plaintiff, but had the defendant proved affirmatively that the consideration for the note was future cohabitation with the plaintiffs daughter.

3. No doubt, the defendant denies that there was any criminal intimacy between himself and the plaintiffs daughter before the execution of the note, but to my mind the evidence establishes beyond all doubt (in fact this was not seriously contested by the learned Counsel for the defendant) that there had been immoral relations between the defendant and the woman for some years before the execution of the note, that these relations were subsisting at or about the time of the execution of the note and that they continued after the execution of the note.

4. It was urged that when a note is given during the continuance of cohabitation, there is a presumption that the consideration, in part, if not wholly, is future cohabitation. This is not so. No such presumption arises from the mere fact that a promise is made during the continuance of cohabitation. In referring to the case of Hill v. Spencer 4 Amb. 641 Kay, J, says in In re Vallance 26 Ch. D. 353: "This amounts to a distinct decision