What is the test for establishing that a party has evidence to support their claim?

In Rex v. Burdett (1820) 4 B & Aid 95, at 122-3, 106 ER 873, Best, J. is reported as follows: “ * * * if the opposite party has it in his power to rebut it by evidence and yet offers none then we have something like an admission that the presumption is just * * * The law does not impose impossibilities on parties; it expects that a man who has the means of knowing who may be witnesses shall call them.”

In Taylor v. Willans (1831) 2 B & Ad 845, 109 ER 1357, an action for malicious prosecution, the prosecutor’s failure to testify at the prosecution was held not inapt “under the very peculiar circumstances of the case to raise an inference that his motive was a consciousness that he had no probable cause for instituting the prosecution.”