(JnrnpU ICatu ^rl^nnl ICibtary 
 
Cornell University Library 
 KF 8870.B56 
 
 An exposition of the practice relative t 
 
 3 1924 020 618 454 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924020618454 
 
AN EXPOSITION 
 
 -OP THE 
 
 PRACTICE REL/TIVE 
 
 TO THE 
 
 RIGHT TO BEGIN 
 
 AND REPLY, 
 
 IN TRIALS BY JURY, AND OTHER PROCEEDINGS,, 
 DISCUSSIONS OF LAW, ETC. 
 
 BY 
 
 WILLIAM M^EEST, ESQ., 
 
 OF GRAY'S INN, BARRISTER-AT-LAW, 
 
 WITH ANNOTATIONS 
 BY 
 
 J. J. CEANDALL, ESQ., 
 
 OF CAMDEN, NEW JERSEY. , A/ 
 
 2/7 iyi^--'i^ ^ ^^ 
 
 BURLINGTON, N. J.: 
 
 FEINTED BY S. S. MUEPHEY, 
 
 1880. 
 
^36^9/ 
 
 Entered accoiding to Act of Congress, in the 
 
 ^ar 1880, by 
 
 ALEXANDER GRAY, ESQ., 
 
 Of Camden, N. J., 
 
 In the Office of the Librarian of Congress, 
 
 at Washington. 
 
 C/ 
 
AUTHOR'S PREFACE. 
 
 ■' If iuiY apolog-y be requisite for offering tliis treatise to the profession, it 
 must be for the execution, and not for the design of it. Although the great 
 practical importance of the subjects which it embraces is known to every profes- 
 sional man, there is, in point of fact, uo work in existence which professes to treat 
 of and explain them. In the able treatises on the Law o( Evidence, by Messrs 
 Phillips and Starkie, they are but lightly touched on, and since the last editions 
 of those authors, a number of most valuable cases have been decided which 
 throw considerable light on the subjects of the Onus Probandi and the Right to 
 Begin ; while this latter has been further most materially affected in some partic- 
 ular species of actions by a resolution entered into by the judges in July, 1833. 
 "With respect to the excellent little works on evidence by the late Mr. Roscot, 
 not only does the first of the foregoing observations apply, namely, that many 
 important decisions have been come to since the very latest editions of them ; 
 but it is to be remarked, that so tar as the matters under consideration are con- 
 cerned, they partake more of the nature of digests of cases than of regular and 
 systematic treatises. Considering then the vast importance of the subjects in 
 ■cjuestion, the absence of any work to illustrate them, and the neglect of others 
 better qualified than himself to take the matter in hand, the author was induced 
 to attempt this essay. 
 
 It consists of three chapters. The first treats of the Onus Probandi, or bur- 
 den of proof generally ; in which the principles by which it is regulated both 
 when there is, and when there is not, a presumption of law in favour of the 
 pleadings of one or both of the litigant parties, are explained and illustrated by 
 select examples. And here it was the author's original intention to have en- 
 tered fully into the important doctrine of Presumption, but finding that this 
 would not only run to a greater length than was consistent with the design of 
 the work, but be in a great degree irrelevant to the object of illustrating the 
 practice relative to the Eight to Bpgin, which is not at all affected by presump' 
 tions o? fact ; he deemed it more advisable to treat of the matter generally, and 
 give some instances of the principal presumptions of laiv ; by which alone that 
 right is influenced. 
 
 The second chapter contains an exposition of the practice relative to the 
 Bight to Begin, in trials by jury, both civil and criminal, and in appeals at Quar- 
 
IV. AUTHOR S PREFACE. 
 
 ter Sessions. This part has been illustrated by a great majority (if not all) the 
 cases to be found in the books on the subject ; and as the decisions are by no 
 means uniform, and recollecting the maxim — "judiciis posteriorbus fides est adhi- 
 benda," it has been thought advisable, in most parts of the work, to give the 
 date of each case, as well as the book from whence it is quoted. 
 
 The third chapter treats of the practice relative to the Right to Eeply in the 
 three sorts of proceedings already mentioned. 
 
 The author is aware that about some of the points touched on in the course of 
 this work considerable difference of opinion exists, while, not unfrequently, the 
 advocates of the most opposite views are enabled to quote judicial authorities, 
 and even regular decisions in their favour. When this has been the case, he has 
 endeavored fairly and impartially to give the arguments and authorities on both 
 sides, and also the expression of his own opinion as to the side towards which the 
 preponderance lies, in the confident hope that the conclusions to which he has 
 thus arrived will be approved of by those in the profession who are best capable 
 of judging and pronouncing upon them. 
 
 EDITOR'S PREFACE. 
 
 In offering an American Editipn of this unique treatise to the profession the 
 editor offers the excuse of a desire to aid and facilitate the investigation of the 
 abstruce questions which arise and demand disposition, momentarily, in the heat 
 of a trial. The editor has expanded the book, not unwisely it is hoped, by in- 
 troducing more matter which is incidental and correlative to the principal sub- 
 jects of the book for the purpose of ready reference in considering questions 
 which inevitably arise in discussing these subjects. The editor flatters himself 
 that by his diligence he has been able to collect and present all the authorities, 
 English and American, which reflect on the subjects and has actually succeeded 
 in rendering a useful book more useful. J. J. C. 
 
OONTEISTTS. 
 
 REFERENCES TO ORIGINAL PAGING. 
 
 CHAPTER I. 
 
 OF THE ONUS PROBANDI. 
 
 Page. 
 
 General principles ' 1 
 
 Design of the present work 2 
 
 Division of the general rule into three parts ih. 
 
 First, where the allegations of both parties are equally probable 3 
 
 Rule on the subject, that the onus probandi lies on the party who asserts 
 
 the affirmative , zb. 
 
 Two things to be here attended to 4 
 
 Distinction between negatives and negative averments ih. 
 
 The affirmative by which the onus probandi is governed is the affirma- 
 tive in substanee and not the affirmative inform 5 
 
 Two general tests for determining the onus probandi 6 
 
 Second case of the general rule, where both allegations are not equally 
 
 probable, or where^there is a presumption in favor of one of them 11 
 
 General nature of j)resumption ib. 
 
 Effect of a presumption in favour of any proposition tb. 
 
 Several kinds of presumptions 12 
 
 Natural presumptions, or presumptions oi fact ih. 
 
 Artificial or legal presumptions ih. 
 
 Presumptions oi mixed law and fad IB 
 
 Presumptions of mere law ih. 
 
 Irrebuttable, or prcesumptiones juris de jure ib. 
 
 Rebuttable, or prcesumptiones juris 14 
 
 Subject of this treatise only affected by rebuttable presumptions, or prce- 
 
 -s umpjtiones juris ib. 
 
 ]Jxamples of the ^rmcvjisXprcBsumptiones juris «6. 
 
 Presumptions derived from the maximum, " Odiosa et inhonesta non sunt 
 
 in lege praesumanda ih. 
 
 Guilt never presumed in criminal cases ib. 
 
VI. CONTENTS. 
 
 MEFEMENCHS TO ORIOINAL FAOIlfO. 
 
 Xor in civil cases 1 •> 
 
 Nov in third parties 10 
 
 ('ouformity to the law always presumed tb< 
 
 Individuals and corporations are presumed to do the duties imposed on 
 
 them 18 
 
 Fraud and covin never presumed 19 
 
 Pvesumptions derived from the maxim, " Omnia prsaesumuntur rite acta . H,' 
 Presumptions derived from the maxim, '■ Omnia praesumuntur contra 
 
 spoliatorem /'h. 
 
 Presumptions founded on the course of nature ih. 
 
 Presumptions that a particular state of things once proved to have ex- 
 isted still continues 20 
 
 Presumptions based on public policy ih. 
 
 Presumptions deduced from the ordinary conduct of mankind 21 
 
 Presumptions deduced from the act of a party tb. 
 
 Conflicting presumptions ib. 
 
 Effect of conflicting presumptions on the onus proband! 22 
 
 Examples of ib. 
 
 Knles respecting conflicting presumptions 23 
 
 Third case of the general rule, — That when a fact lies within the peculiar 
 
 knowledge of either party he must prove it {b. 
 
 Effect of this rule //,. 
 
 In civil cases {b. 
 
 In criminal cases //,. 
 
 Recapitulation j'j,. 
 
 Six rules for determining the onus proband! 26- 
 
 Two tests for same /b. 
 
 CHAPTER 11. 
 
 OF THE RIGHT TO BEGIN. 
 
 Design of this chapter 27 
 
 Advantages and disadvantages of having the right to begin 28 
 
 General rule on the subject 29 
 
 Common enunciation of j'j 
 
 Correct enunciation of ,Y) 
 
 Two things to be observed ^-j^ 
 
 The right to begin is only affected by the onus proband! as it appears 
 
 on the record -i 
 
 A party by admitting his ad^•ersary's prima facie case may obtain for 
 
 himself the right to begin ^-j^ 
 
 Instances of this ofi 
 
CONTENTS. vii. 
 
 MBFERENCBS TO ORIGINAL PAG IN Q. 
 
 Extent to which the admission must go ;7). 
 
 Exceptiou g-i 
 
 Of the right to begin in civil proceedings 33 
 
 Eeal actions, -syhy not considered in this work H, 
 
 Pei-sonal and mixed actions j6_ 
 
 Discussion of the qnestion how far the mere onus of proving damages ly- 
 ing on the plaintiff confers on him a right to begin, when the onus of 
 
 proving the facts in issue lies on the defendant ih. 
 
 Cases on the subject previous to July, 1833 34 
 
 Principles which they establish 42 
 
 Eule or the fifteen judges, promulgated July 6, 1833 43 
 
 Discrepancy in the reports of ih. 
 
 Cases decided in illustrations of 44 
 
 Principles which they establish ih 
 
 Rule respecting the right to begin where there are several issues joined the 
 onus of proving some of which lies on the plaintiff and others on the de- 
 fendant 50 
 
 Examples of this .' ih. 
 
 Caution to be observed, that the second issue must be a bona tide not a 
 
 (■olourable one, e. g 51 
 
 Not guilty to the force acd arms in trespass quare clausum fregit, is not ih. 
 
 a distinct issue ih 
 
 The general issue pleaded to common counts joined with special, for the 
 
 purpose of securing a verdict, not a separate issue 52 
 
 In what instances the party who begins has a right to reserve part of his case 54 
 Application of the above general principles of particular forms of proceeding .IG 
 
 Of the right to begin in pleas in abatement ih. 
 
 (ieneral principle ih 
 
 Examples ih. 
 
 Plea for non joinder of a defendant ib. 
 
 Plea for non-joinder of a plaintiff 58 
 
 Of the right to begin in particular action 58 
 
 Assumpsit ih. 
 
 Generally ( ib. 
 
 For breach of promise of marriage 61 
 
 Case lb. 
 
 Covenaiit ih. 
 
 Debt ib. 
 
 Trespass 62 
 
 Quare clausum fregit, to try a right ih. 
 
 Breaking house and taking goods ih. 
 
Viii. CONTENTS. 
 
 BEFERENQEa TO ORIGINAL PAOINO. 
 
 Assault and battery «^- 
 
 Other injuries to property 63 
 
 Trover «&• 
 
 lOf tlie right to begin in other miscellaneous Proceedings ^. . 63 
 
 Information in the nature of a quo warranto «6. 
 
 Writ of error to reverse outlawry tb. 
 
 Of the right to begin in ejectment 64 
 
 Ejectment by landlord ib. 
 
 Ejectment by law ' ib. 
 
 Ejectment by devise • 68 
 
 Of the right to begin in replevin ib. 
 
 Of the discretionary power of the judge at nisi prius relative to the right to 
 
 begin 72 
 
 Whether party entitled to begin can waive his right 74 
 
 ■Of the right to begin in criminal cases 74 
 
 Considerably simplified by two circumstances ib. 
 
 General rule on the subject 75 
 
 Of the right to begin in appeals at quarter sessions 7o 
 
 General rule ib. 
 
 A¥ant of uniformity in the practice 76 
 
 Examples of the right to begin ib. 
 
 Appeals against poor's rates ib. 
 
 Appeals against orders of removal 79 
 
 Appeals against the appointment of overseers 81 
 
 Appeals against the allowance of overseers' accounts tb. 
 
 Appeals against the allowance of ditto • ib. 
 
 Appeals against county rates ib. 
 
 Appeals against the stopping up highways 82 
 
 Appeals against proceedings under inclosure acts z'b. 
 
 Appeals against convictions {b. 
 
 CHAPTER III. 
 OF THE RIGHT TO REPLY. 
 
 (General principles 34 
 
 'Three distinct cases to be considered 85 
 
CONTENTS. IX. 
 
 SEFERENCES TO OBIOINAL PAGING. 
 
 "S^ hero the responding' party gives evidence to the issue ih. 
 
 General rule that the opener may reply ih. 
 
 Examples of its application ili. 
 
 Particulars of demand under judge's order 86 
 
 Evidence to character in criminal cases R /b. 
 
 Cases where it has not been held to apply 88 
 
 "Where the responduig party adduces no evidence and states no new Isicts. . 88 
 
 General rule ('6. 
 
 Exceptions 90 
 
 Prerogative of the crown ih. 
 
 Privileges of the House of Commons in parliamentary impeachments .... 92 
 Where the responding party adduces no evidence, but states in his speech 
 
 to the jury /acfs not already in evidence il> 
 
 Common opinion on this subject, that the opener is then entitled to reply as 
 
 a matter of right ib. 
 
 Discussion on this question ih. 
 
 Arguments and authorities in favour of the right ib. 
 
 Arguments and authorities against it 94 
 
 Principle which they seem to establish 99 
 
 Practice relative to the right to reply when the plaintiff goes into a rebutting 
 
 case after the defendant has concluded 90 
 
 Practice relative to the right to reply when there are several issues, the onus 
 
 of proving some lying on the plaintiif and some on the defendant 101 
 
 When responding counsel in his address to the jury raises a point of laiu . . . ib. 
 When a, point of law, or a question relative to the adraitsibility of evidence, 
 is raised at the trial M 102 
 
 .Eesolutions nf the judges under the prisoner's counsel act (6 <t 1 AVill. W . c. 
 114.) 103 
 
CHAPTER I. 
 
 OF THE ONUS PROBAND!. 
 
 Every controversy, (1) legal or otherwise, must ultimately resolve 
 (2) itself into this, that there are some one or more points (3) or facts- 
 
 1 If it appears on the record that issue has not been joined, the jury must lie 
 discharged. Bent vs Benyon 6 C. >t P. 216, — and it is said, '• tliat a judge should 
 not even by consent of parties allow an is?ue to be tried which the record does 
 not properly raise." Ellison vs. Isles 11 Ad A- Fdl. 665, Shuf vs. Slihvell 6 Halst 
 (X.J.) 282. 
 
 2 The object of pleading is to point out or " asri-i-tnin the subject for decision 
 4 Minor's Inst. 887. This is accomplished by alleging with legal certainty. '• the 
 h-(j,d cffi'ct of thefadK ami uof the farts themsrlvrs, Dyell v Pendleton 8 Cow, 
 729, — " not strictly the bare conclusimis of law themselves derived from the cir- 
 cumstances of the case, Init rather combinations of fact and law, or the I'ucts 
 with a legal coloring and clothed with a legal character Pomroy's Kem., kv.. 
 ?511. 
 
 Chief Justice says McAlister vs Kuhn G 01 to 87 on the sufficiency of the alle- 
 .yation. — " The d<fvinJaiit iritlionf Ids [iilnintiff's) ronsrid and u-rdiuifidb/ took 
 said shai-i's and cotnyrti-d them mdaiifidli/ and K-roiigfuUy t(,i his mm iis< — 
 •'that for the purposes of pleading the ultimate fact need only lie stated. The 
 circumstances which tend to pro\-e the ultimate tact can be used for the purpose^ 
 of evidence, but they have no place in pleading ^Ve think that tlie complaint 
 does state all the facts necessary to constitute a cause of action." The " ultimate 
 fact distinguished from mere evidentiary matter, Cowin vs. Toole 31 Iowa oiii. 
 Singleton vs. Scott 11 Id .589 ; Gates vs. Salmon 46 Cal .SGI, H7!), King vs. fin- 
 terprise Ins. Co. 45 Ind 43. 
 
 3 " Point" isall the singleness required in pleading ; and the " ccitaiii material 
 point" need not consist of a single fact, but of dependent facts constituting a 
 proposition ; — that they must have relation to each other and be so dependant 
 and connected as to render it necessary to state them all in order to make outth& 
 " point" Cooper vs. Hermance, 3 Johns, 318 ; Briggs vs. Dorr 19 Id., 96 Tucker 
 vs. Ladd 7 Cow, 452. 
 
 Co. Lit, 125 ; Simonton vs. Winter 5 Pet. 141 ; Kobinson vs. Rayley 1 Burr 
 319 ; Stewardson vs. White 3 Har & M. 455 ; Obrien vs. Sa.xton 2 Barn & Cress, 
 908 ; McClure vs. Erwin 3 Cow, 327 ; Car vs Hinchcliff 4 Barn, & Cress 553. 
 
-2 ONUS PROBAND!. 
 
 asserted by one of the disputant parties, which are denied or con- 
 tested by the other (4). 
 
 4 In ? 5 et passim, It is held that " the afflrmitive of the issus ra^aiis affirma- 
 tive in substance * * * the substantial question between the parties &c. 
 And in examining the issues made by the parties legal materiality and substance 
 talone will be considered Howe vs. Lawrence 2 Zeb 99 ; and where the declaration 
 Tvould remain good after striking out a particular allegation, a plea tendering is- 
 sue on such allegation is considered bad Jackson vs. AUaway 6 Man & Gr. 950 ; 
 Turnley vs. McGregor Id 46 ; Wallis vs Warren 4 "Wels, H. & G. SOI ; and pleas 
 which traverses such allegations are bad in substance, Dicker vs. Jackson 6 Man. 
 Gr. & S. 114 ; Hudson vs. Huslara 7 Man. Gr. & S. 837 ; Mills vs. Blackall 11 
 Ad & El N. S. 358; Bird vs. Holman 9 M & W. 762 ; Bradley vs. Eyre 11 Id., 
 449 The traverse denial or issue should be confined to the material proposition 
 alleged, and be coextensive with it and no more, Baden vs. Plight 3 Bing N. C. 
 .«85, Newen vs. Gill 8 C. & P. 367 ; Bishton vs Evans 2 C. M. & R. 12 ; but 
 where several facts combine to constitute one proposition, it is no violation of 
 the rule to traverse all, for all must be proved Robinson v.s. Raley 1 Burr 316 ; 
 0. Brian vs. Saxon 1 B. & Or. 908 ; Patcher vs. Sprague 2 Johns, 462. But see 
 generally where pleas must be confined to a connected point instead of single fact 
 •Gould's PL 420 & 4, Tibbots v.^. Tilton 23 N. H. 120 ; Barker vs. Brink et als 4 
 -Zab 343 ; Tucker vs. Ladd 7 Cow 450 ; Strong vs. Smith 3 Cai 160 ; Toney vs. 
 Field 10 Vt, 353, consult Inde.\- — Titles Duplicity — and Strike Out. 
 
 Ihe ti'a verse must not be too large by involving damages Jones vs. Lees 1 H. 
 & N. 194 ; matter of aggravation Leach vs. Medgly 1 liOV, 283 ; 1 Chit, PI, 645 
 inducement, — explanatory introduction Gladstone vs. Hew 1 Orompt & J. 568, 
 4ind generally questions of mere quantity, time, place or other circumstances, 
 ^hich, though they form part of the alligation traversed are immaterial to the 
 merits. 
 
 In an action on a policy of insurance of a ship and tackle, if the traverse be 
 of the loss of the ship and tackle, it is bad as being too large ; for it ought to 
 be in the disjunctive, ship or tackle, as the plaintiff is entitled to recover for 
 any part lost Newhall vs. Barnard Yelv 225 ; Goram vs. Sweating 3 Saund, 205 
 4 Minor's Inst. 928. 
 
 In an action for cutting down a mill dam, — plea, that the dam was erected 
 without due authority of law, and obstructed a public road and ford, so that the 
 citizens of the Commonwealth could no longev use the same, as they were ac- 
 customed to do. Reply that the dam did not entirely obstruct the public road 
 and ford and that citizens &c., were not altogether prevented from using the 
 .same. This was held to be too wide a traverse, tending to raise an immaterial 
 issue upon the extent of the obstruction, whereas any obstruction at all was il- 
 legal, and justified the defendant's conduct Dimmett vs. Eskridge 6 Munf. 308 
 
ONUS PROBANDI. 6 
 
 Now the principles of natural reason clearly point out, that 
 where there are uo antecedent grounds for supposing the asser- 
 tion or denial of one party more probable than the assertion or 
 denial of the other, and where the means of proof are equally 
 
 Moore v Boulcott 1 Biiig- X. (.'. 40-t ; Stul)l)s vs. Laison et ills, 1 Mees & "W 728 : 
 Bradley vs. Bardslev 14 Id 72S ; Smith vs. I;Ovell 10 Com. B. 23, 24; 4 Minor's 
 Inst 929. Another eonimou vice which tends to destroy certainty as to the legal 
 effect of the issue occurs when the plea negatives in the very words of the declar- 
 ation, or pleads conjunctively, leaving the plea pregnant with nuschievious ad- 
 missions not excluded by tlie plea ; as when the complaint alk'ged that the 
 plaintiff did crrfain icurk and labor at the rrqui-sf of the deftndant ; — a plea 
 denying that he performed such work and labor at the request ot the defendant, 
 — admitted the performance of the services by the plaintiff, Bradliurry v,s. 
 Crouise 46 ("al, 287, — and a finding of fact in opposition to such admission will be 
 set aside on appeal, ^[orton vs. AVarings Heirs 18 B Mon, 72, 82 ; Howard vs. 
 Throckmorton 48 Cal 482 In Young vs. Catbtt 6 Duer 442. AVoodrufF J says 
 " A denial that A and B and C and D were present on a certain occasion is no 
 denial that B was present, or that A and B were present and so as to either. X 
 denial that A went to Rome and to Egypt and to Jerusalem, and returned from- 
 Jerusalem to New York, is not a denial that A went to Egypt.'' 8ee Kay vs. 
 Whittaker 44 X. Y. .565 ; Harris vs. Shoutz I Mont. 212 ; Doolittle vs. Green 
 32 Iowa 123; First Xat. B'k vs. Hogan 47 Mo. 472 Schaetzel vs. G-erm, iav 
 Ins. Co. 22 "Wise. 412 ; Pollgieser vs. Done 16 >[inn. 204; Lyud vs. Pickett 7,_ 
 Minn. 1». 
 
 The traverse must not be too narrow, Ijut must actually answer all it under- 
 takes to answer and leave nothing material unanswered Paymaster General vs.. 
 Reader 4 "Wash. C. C. R. 678 ; Flemming vs. Hoboken 11 Yr. 270 ; Lord vs. 
 Brookfield 8 Id. 552 ; Clark vs. Logans 2 :\Ian. i- Gr. 167 ; Stemmers vs. 
 Yearsley 10 Bing 35 ; Davis vs. Gary 15 Q. B. 418, Davies vs. Ashton, 1 Man. 
 Gr. & Sc. 746 ; Hainmond vs. Colls 1 Id. 916 ; Jones vs. Stevenson 5 j\Iunf 1 ; 
 4 Minor's Inst 913. 
 
 A traverse of a mere conclusion of law which does not include matter of fact 
 material to the right is bad, Clearwater vs. AEeredith 1 "Wall 25 ; Bishop of 
 Meath vs. Marquis of "Winchester 10 Bligh X. S. 479 ; Rogers vs. Spence 12 
 CI. & Fin 717 ; Ransford vs. Copeland 6 Adol & El 492,— and it is said that is- 
 sues submitted to a jury should be in language so plain that no doubt can arise 
 as to their meaning, Morris vs. Morris 28 Mo. 114, and the time of the court 
 should not be occupied with vain and useless speculation as to the meaning of 
 ambiguous terms., "Williams vs. Jarnian 13 M. & "W. 135 Dy*er vs. Battye 3 
 Barn k Aid 448. 
 
4 ONUS PROBANDI. 
 
 accessible to both, the party who asserts the fact or point in ques- 
 tion should be expected to prove his assertion; the onus probandi 
 or burden of proof is said to lie upon him, and the party who 
 denies it oue;ht not to be called on to give any reasons or evi- 
 dence to prove the contrary, until the other has laid at least some 
 probable grounds for inducing a belief of his position. 
 
 This rule not only has its origin in the very nature of things 
 and grounds of one's belief, when metaphysically considered, but 
 is one, the justice and convenience of which, are so obvious to 
 the human mind, that besides being acted upon in every well- 
 regulated system of controversy and discussion, it has been in- 
 •corporated into the jurisprudence of every enlightened country, 
 *2 (although perhaps not ^expressed in the same words as 
 above) and been from the earliest times recognized and adopted 
 into our own. 
 
 § 2. Although this is a principle which pervades generally both 
 our law and practice, yet inour present volume it is only proposed to 
 •consider its application as influencing the rights of the respective 
 litigant parties to begin the case and give evidence in trials by 
 jury, and in those cases before courts of quarter sessions in which- 
 they have peculiar jurisdiction, and may in a certain sense be con- 
 sidered to be sitting as a jury. And here it may be well observed, 
 that " the precision of allegation which is required by the English 
 rules of special pleading (1) is particularly well calculated to ascer- 
 
 1 . Because it formulates the issues so as to present the propositions to be 
 proved contradistinguished to those which stand proved by intendment of law. 
 
 It is a fundamental rule of pleading that a material fact asserted on one side, 
 ;and not denied on the other, is admitted, i. e. proved. Simmons vs. Jenkins 76 
 111. 482 ; Dana vs. Bryan, I Oilman, 104; Pearl vs. Welman, 3 Id. 311 ; Briggs 
 m. Dorr, 19 Johns, 95 ; Jack vs. Martin, 12 Wend. 316 ; Raymond vs. Wheeler, 
 ,9 Cow. 295, and notes to last section. And a special plea is any ground of de- 
 fence which admits the facts in the declaration, but avoids the action by matter 
 which the plaintiff w^ould not be bound to prove or disprove in the first instance 
 on the general issue. Bk. of Aub. vs. Weed, 19 Johns 302 ; Ott. vs. Schrappel. 
 3 Barb. 59 ; Maggurt vs. Hansbarger, 8 Leigh. 537 ; Bait. & 0. R. R. Co. vs, 
 Polly, Woods & Co., 14 Gratt, 454. 
 
 Its essence is its admission by failure to deny or otherwise,— and its affirmative 
 
ONUS PROBANDI. 
 
 tain. the incumbency of the proof, which is to be made by the 
 respective parties ; and the principles which reguJate the obliga 
 tion of proof where strictness of pleading is required, may fre- 
 quently assist in the exposition of the law, where the allegations 
 are of a more general nature." (a) 
 
 "We will therefore proceed to consider more in detail, and illus- 
 trate by apposite examples, that rule which has been expressed 
 above in its fullest degree of generality. 
 
 (a) 2 Ev. Poth. 143. 
 
 declaration of avoidance ; and up to this point tliere is notliing for the jury to 
 do. a? they are only called into requisition when there is conflict of evidence, 
 €arnes vs. Piatt, I Sweeny (X. Y.) 146 ; Haynes vs. Thomas, 7 Ind. 38 ; Gilles 
 pie vs. Buttle, 15 Ala. 276 ; Svvarlswolder vs. U. S. Bk., 1 J. J. Marsh, 38 ; and 
 since the testimony must consist of specific facts included under generic allega- 
 tions, McAlester vs. Kuhu, 6 otto 87 ; Hamilton vs. People, 27 Mich. 193, Shain' 
 vs. Markam, 4 J. J. Marsh, 578, it is necessary that the allegation should also 
 conflict,— hence the issue, consisting of an assertion of the contradictory of the 
 proposition asserted by the opposite party. Whalely's Logic, B. 11. Ch. 11, § 3. 
 The effect of these evidential — specific facts upon the consciousness of the jury, 
 this treatise has no concern. The|question of the Eight to Begin is a question 
 of law — ^jurisprudence contradistinguished to logic. The rights of the parties 
 from the legal intendment of the pleadings, is a question of law for the court to 
 act on as in case of a special verdict or affirmatively admitted facts. Jones vs. 
 Brown, 1 Bing. N. 0. 484 ; Coffin vs. Knott, 2 Greene (Iowa) 582 ; Grubb vs. 
 Remmington, 7 Wis. 349 ; Freeman vs. Cnrran, 1 Minn. 169. They will render 
 judgment by way of a summary demurrer, Burrall vs. Moore, 5 Duer. 654; Liv- 
 ingston vs. Hummer, 7 Bosw. 675. Testimony will not be received to contradict 
 an express or implied admission of the .pleadings. Page vs. Willets, 38 N. Y. 
 31 ; Bobbins vs. Codman, 4 E. D. Sm. 325. So if a defence be properly set up 
 it will prevail, even though the plaintifTs evidence inadvertently establish it, 
 Brazell vs. Isham, 2 Kern (N. Y.) 9, as the court is bound to act on the plead- 
 ings, Develle vs. Eoath, 29 Ga. 733. 
 
 For these reasons it is said the burden of the issues rests upon the party who 
 ■would be defeated in the action of no proof were offered. Kent vs. White, 27 
 Ind. 390 ; Teiths vs. Hagge, 8 Iowa 163. So where a defendant appears and 
 pleads an affirmative plea in bar, and afterwards makes default at the trial, judg- 
 ment by default may be entered against him, Stapp vs. Thompson, 1 Dana 214 ; 
 Schooler vs. Asherst, Id. 216, and if, after pleading, a party withdraws his ap- 
 pearance by leave of the court, his pleas go with him, and judgment may be en- 
 tered by default. Carver vs. Williams, 10 Ind. 267. 
 
Q ONUS PROBANDI. 
 
 And here it will be easily perceived, that as that rule consists 
 of three parts, there are three distinct cases to be considered. Ist. 
 Where there is neither any antecedent reason for believing the 
 allegation of one party more probable than that of another, and 
 where the means of proof are equally accessible to both. 2nd. 
 Where though the means of proof are equally accessible to both, 
 yet there are some antecedent grounds for believing the allegation 
 of one party more probable than that of the other. 3rd. Where 
 the means of the proof of his allegation are directly and imme- *S 
 diately in the power of one party, while the other, *from the 
 very nature of the question, lies under considerable difficulty in 
 giving any evidence of the truth of his. Of these three it is 
 proposed to treat in their order. 
 
 § 3. In the first of them, then, viz. Where there is neither any 
 antecedent reason for believing the allegation of one party more 
 probable than that of the other (1), and where the means of proof 
 are equally accessible to both, that principle applies which isrec- 
 
 1. The author here confounds presumptions of law with presumptions of 
 fact. Presumptions of law derive their force from jurisprudence, and relieve 
 either partially or wholly the party invoking them from producing testimony 
 Presumtions of fact require the production of evidence as a preliminary. It is 
 held as a matter of law that they m»sf rest on establisheil facts. Tanner vs. 
 Hughes, 53 Pa. 289 ; McAlier vs. ilcMurry, 58 Id. 126 ; O'Gara vs. Eisenlobar, 
 38 X. Y. 296 ; Richmond vs, Aikin, 35 Tt. 324. 
 
 The former is law for the court, the latter is reasoning, argument, logic for the 
 jury. We are essaying to deal with the former not the latter. The burden of 
 the affirmative of the case as stated, as a' legal conclusion, intendment, or pre- 
 sumption, not the burdenof proof, as to its probative or convincing quantity or 
 quality. When the parties have formulated a controversy by pleading— all the 
 legal intendments are then fixed which never change, because jurisprudence is 
 uniform and universal, until it is changed by jurisprudence itself This is accom- 
 plished by a verdict which may confirm or destroy the legal intendments and pre- 
 sumptions of right in the pleadings. The author's "neither any antecedent rea- 
 son for believing the allegation of one party more probable than that of the 
 other," relate to the processes of evolving a verdict,— purely a question of con- 
 sciousness,— of reasoning, of logic and not law, except so far as presumptions of 
 fact, burden of proof— prima farie case are governed by legal principles based 
 upon logical processes. 
 
rt 
 
 ONUS PROBANDI. 7 
 
 In Poweis vs. Russel, 13 Pick. 7(1, Shaw I'. J. say.^ : "It may be useful to say 
 word upon the subject of the burden of proof. It was stated here, that the 
 plaintiff had made out a prima facie case, and, therefore, the burden of proof 
 was shifted and placed upon the defendant. In a certain sense this is true. 
 
 Where a party having the burden of proof establishes a prima facie case, and 
 no proof to the contrary is ofTered, he will prevail. (Judge Catron in the U. S 
 vs. Wiggin, 13 Pet. ,S74, says. 'W/ikY /.s prima facie evidnice of a fact ? II 
 is tiidi as. ill judgiui lit if lair, is sufficient to establish the fact, and if not 
 rtbtiitcd. rimaiiis sufficient for the purpose. KcUy vs. Jackson, 6 Pet. O.ri). 
 Therefire, the other party, if he would avoid the effect of inch prima facie case^ 
 must produce evidence, of equal or greater weight, to balance and control it, or 
 he will fail. 
 
 Still the proof upon both sides applies to the affirmative or negative of one 
 and the same issue, or proposition of fact ; and the party M'hose case requires the 
 proof of that fact has all along the burden of proof {mcaniiKj the burden of the 
 qffirmatiii of his case or issue as a irhoh). 
 
 It does not shilt. though the weight in either scale may at times preponderate. 
 But where the party having the burden of proof (legal affirmative on the plead- 
 ings) gives competent &r\d prima facie evidence of a fact, and the adverse party 
 instead of producing proof which would go to negative the same proposition of 
 fact, proposes to show another and distinct proposition which avoids the effect of 
 it, there the burden of proof shifts, [the legcd affirmative shifts), and rests upon, 
 the party proposing to show the latter fact. 
 
 To illustrate this : — prima facie evidence is given of the execution and deliver)^ 
 of a deed, contrary evidence is given on the other side, tending to negative such 
 fact of delivery, this latter is met by other evidence, and so on through a long- 
 inquiry. The burden of proof [of the affirmative) has not shifted, though the 
 weight of evidence may have shifted frequently ; but it rests on the party who 
 originally took it. But if the adverse party offers proof, not directly to nega- 
 tive the fact of delivery, but to show that the deed was delivered as an escrow, 
 this admits the truth of the former proposition, and proposes to obviate 1,he ef- 
 ■ feet of it, by showing another fact, namely, that it was delivered as an escrow. 
 Here the burden of proof (of the affirmative) is on the latter. Eoss vs. Gould,. 
 5 Greenl, 204, Brooks et. als. vs. Barrett, 7 Pick. 94, 99, 100. 
 
 Church Ch. J. says in Heineman et. als. vs. Heard et. als, G2 N. Y. 4.55 : "Dur- 
 ing the progress of a trial it often happens that a party gives evidence tending 
 to establish his allegation, sufficient it may be to establish it prima facie, and it 
 is sometimes said, the burden of proof is then shifted. All that is meant by 
 this is, there is a necessity of evidence to answer the prima facie case, or it will 
 prevail : but the burden of maintaining the affirmative of the issve involved in, 
 the action is upon the party alleging the fact which constitutes the issue, and 
 
8 ONUS PROBANDI. 
 
 ognized both in the civil law and our own as the great gene- 
 ral rule by which the burden of proof is regulated, i. e. that it 
 lies on the party who asserts the affirmative of the issue or point 
 in question, as the case may be, to prove his allegation, and not 
 upon him who merely denies that assertion to prove his nega- 
 tive (b). Thus, " he who alleges himself to be the creditor of an- 
 other, is bound to prove the fact or agreement on which his 
 claim is founded when it is contested ; and on the other hand 
 when the obligation is proved, the debtor who alleges that he has 
 discharged it, is obliged to prove the payment" (c). "In an ac- 
 tion against an executor, where the defendant pleads plene ad- 
 "miriisirnvit (2), and the plaintiff replies (either generally or special- 
 ly) that the defendant had assets ; it lies upon the plaintiff to 
 prove this assertion, and not upon the defendant to show that 
 (h) Vide Dig. 1, 22, tit. Pi-obet. Hub. Proel. Juris Civillis, 1. 22. t. 3, p. 2. Co. 
 Litt. 6 ti, and a number of authorities there cited from the Year Booljs ; Viu. 
 Abr. Evidence, L. a. ; Gilb. L. B. 148 . B. N. P. 297 ; 1 Phill. Ev. 147 ; 1 Stark. 
 Ev. 376 ; Boss vs. Hunter, 4 T. K. 33, 48 ; Calder vs. Eutlierford, 3 B. & B. 202- 
 The rule as to onus prObandi appears to have been established as early as the 
 reign of Charles the First, as Lord Keeper liittleton, in his reports in C. P. 'IVin 
 term. 3 Car. 1. 36. says, " In evidence al jury fuit dit per curiam, qui il que affirm 
 le matter in issue, doet primierment faire le proof al jury. 
 
 (c) '2 Ev. Poth: 143. 
 
 this burden remains throughout the trial. Lamb vs. Cam. X- Am. P. E. Co., 46 
 N. Y. 271. The question of negligence depended upon all the evidence, as will 
 that which constituted a prima facie case against the defendants, as all the 
 other evidence produced by the plaintiff tending to corroborate, and by the de- 
 fendants tending to answer the charge ; and the jury should have been satisfied 
 from the whole case that the plaintiff's allegation was proven." Brown vs. Kent- 
 fleld, 50 Cal. 129. 
 
 So that a party has a right of beginning in the first instance who holds the af- 
 firmative of the case by virtue, not of any ■■probabilities" of fact, but by reason 
 of the assumption of law that all uncontroverted facts in the pleadings are es- 
 tablished. 
 
 2. So held in Bentley vs. Bentley, 7 Cow. 704 ; and it is also well settled that 
 one executor is not chargeable with assets which come into the hands of his co- 
 executor, but only with the assets which come into his own hands, Douglass vs. 
 Satterlie, 11 Johns 21, Hai-gthrop vs. Milforth, Oro. Bliz. 318, Elwell vs. Quash, 
 Str. 20, and when assets have once come into his possession he is answerable for 
 the due administration of them even if he deliver them over to his co-executor 
 
ONUS PROBA?rDl. 9 
 
 t'rass V;;. .Smith, 7 Eust. 2-Ui ; and it is also c(|uallj- well settled that each execu- 
 tor has the control of the estate, and may release, pay or transfer, without the 
 agency of the other,— and that executors and administrators stand on the same 
 ground, and their powei-s and responsibilities, in respect to each other, the same, 
 Jacol) vs. Harwood, 2 Ves. Sr. 267, Douglas vs. Satterlic, supra, 1 Overt. (Tenn.) 
 3S.i, State vs. Collier, 15 Mo. 293. 
 
 But as the common law plea of plciic admiiu'sfrav/t has been changed by 
 statute in most States, it is thought the following opinion by Judge Dillon in 1 
 Dill. Cir. Ct. 16, will warrant insertion here. 
 
 •• This is an ordinary action against an administrator upon the contract of in- 
 dorsement made by his intestate. The plaintiff seeks simply judicially to estab- 
 lish his claim against the estate. The statute of Missouri in terms declares that 
 •■ Any person having a demand against an estate, may establish the same by judg- 
 ment or decree of some court of Record, Genl. St. 186;"), .3(12, | 8. The right of 
 the plaintiff to bring this action is clear and undisputed, Payne vs. Hook, 7 
 ^Vall. 42.-.. 
 
 Each of the pleas demurred to is. in form and substance, a common law plea 
 of ph-tie adm/iiistrarit, viz. : that the defendant has now no assets of the dece- 
 dent, but had, befoi-e the commencement of this action fully administsred the 
 same The demurrer raises the cpiestion, whether, under the laws of the State 
 of Missouri, the plea of j5Z(?;it' o(?m/«/,!,/;-n(7V is a defence, or presents an issue 
 which it is proper to try in an action of this character, to wit. : an action merely 
 to establish the validity and amount of the debt against the estate. 
 
 The modes of the administration of the festate of deceased persons in England 
 and in most of the American States, are, in many respects, very different. In 
 England if an administrator suffered a judgment to go against hira by default 
 or failed to plead that he had fully administered, such a, judgment ^vas held to 
 be a conclusive admission by the administrator that he had assets sufficient to 
 pay it, and in effect bound the administrator personally, and amounted to an ap- 
 propriation of such assets to the payment of the judgment. Hence, the reason, 
 and also the necessity for such a plea. 
 
 Xot so, however, here. Whether the administrator does or does not defend, he 
 is not bound personally, and there is no judgment dr ho/u's prapr/'/'s, and no ex- 
 ecution against either the goods of the administrator or of the decedent. The 
 judgment simply establishes the debt and orders it to be paid liy the administra- 
 tor in due course of administration. Armstrong vs. Cooper, 11, 111. .t7U, Laugh- 
 lin vs. McDonald, 1 3[o. 648. 
 
 Under the laws of Missouri, the administrator is liable only to the extent of 
 assets received, and for waste and mismanagement. The statute classifies the 
 debts against the estate, and directs the mode and order of payment by the ad- 
 ministrator. A judgment, such as the plaintiff seeks, is no evidence that the ad- 
 
10 ONUS BROBANDl. 
 
 he had not any (a), although in a very old case it was hold other, 
 wise (b). And in an action for a loss (c) occasioned by a barratrous 
 act in the master of a ship, where it was objected by the defendant 
 that the plaintifi" ought to ]3rove that the master was not also the 
 *4 owner or freighter, and that he did not act under *the direc- 
 tion of the person who was, (in which case barratry could not be com- 
 mitted), it was held by the court in banc, that if the master was 
 the owner or freighter, or acted under the direction of the 
 owner, the onus of proving that fact lay on the defendant, 
 and Buller J. said, "it was not incumbant on the plaintiff to prove 
 that the captain was not the owner, for that would be calling on 
 him to prove a negative, and if the captain was not the owner it 
 is immaterial who was ; proof of the fact which operates in dis- 
 charge of the other party lies on him." {d). 
 
 (a) Peak's Ev. 370; 1 Stark. Ev. 377. 
 
 (6) Dean and Chapter ot Exeter v. Trewinnard, Dj'. 80. 
 
 (c) This was an action against an under-writer upon a policy of insurance on 
 goods on board the Live Oak, whereof was master Joseph Rati, at and from Ja- 
 maica to New Orleans. The first count in the declaration, which was in the 
 usual form, contained an averment that the ship " before her arrival at New 
 Orleans was, together with the goods, &c., by the barratry of the said Joseph 
 Rati, he then and there being master of said ship, &c., ran away with, and wholly 
 lost to the plaintiff, &c." by the terms too of the policy, the underwriter contract- 
 ed to indemnify the plaintiff against the barratry of this very man. 
 
 Ashurst J. said " The question is, whether the plaintiff's evidence was suffi- 
 cient to be left to the jury as to the barratry of the master ? As to which the 
 facts stand simply thus : The ship in question was put up as a general ship of which 
 Bati was stated to be the master ; that, prima facie, then supposes him not to be 
 the owner. 
 
 Then the rule of evidence applies in this case, that the affirmative is always to 
 be proved by those whose interest it is to prove it. Here it was the plaintiff's 
 interest to prove that Eati was the master, which he did accordingly ; if then it 
 were for the defendant's interest to prove that he was also owner, — it was incum- 
 bent on him to show it ; but there being no evidence of that sort, the jury did 
 right in finding him guilty of barratry on the facts which were in evidence before 
 them." . 
 
 (ci) Boss vs. Hunter, 4 T. K. 33, 38. ^ 
 
 niinistrater has assets or that he has been guilty of any default, and any inquiry 
 of that kind in an action, such as the present, is entirely collateral, and it does 
 seem to us most manifestly improper. 
 
 For the reasons above given, the courts in other States have held, under stat- 
 utes like that of Missouri, that a plea of plene administravit is not a good plea. 
 Allen & wife vs. Bishop's Ex'rs, 25 Wend. 414, Baker's Ex'rs vs. Gainer's Ex'rs, 
 17 Id. 559, Butler vs. Hempstids, Adm'rs, 18 Id. 666, Judy vs. Kelly, 11 111., 
 211." 
 
ONUS PROBANDI. 11 
 
 § 4. In order however to guard against misconception or misap- 
 plication of this general rule, two things must be carefully attended 
 to. First, not to confound negative averments or allegations in 
 the negative, with those negatives which traverse affirmative 
 allegations ; and secondly, to observe that the affirmative of the 
 issue, as understood in practice, means the affirmative of that 
 issue in substance, (1) and not merely the affirmative in form. With 
 
 1. ■■ Substance of the issue means the legal intendments arising out of the 
 facts set forth in the pleadings. Affirmative pleading contradistinguished to neg- 
 ative pleading, may be conducted Vij- negative propositions in Logic, but with no 
 more facility, however, than negative pleading, by affirmative propositions ; and 
 they derive their affirmative or negative qualities from the nature of the contro- 
 versy which they develope and formulate when considered in opposition to each 
 other; and it is only by considering them together, and correlated, that the "sub- 
 stance " for the purpose of determining the burden can be determined. To illus- 
 trate : — if one assert that he is rightful heir, so far it is affirmative. But if an- 
 other plead to this allegation, that he was not born in lawful wedlock, it becomes 
 at once, and bj- virtue of the plea, negative, and stands proved until the party 
 affirming illegitimacy remove the presumption against illegitimacy liy proof, If 
 in an action against the maker it is alleged that the payee endorsed the note, to 
 the plaintiff, the holder, it is affirmative, and on the general issue would require 
 proof; but if a special plea be interposed alleging that the note had never been 
 delivered, the declaration would become negative, because the plea has relieved 
 it from the necessity of proof, by stating a defence, against which, there is a legal 
 presumption which he must assume to remove, as the law presumes in favor of the 
 indorsee, the holder. So the affirmative may be in the negjitive form in the first in - 
 stance for the purpose of overcoming a presumption of law, — as if a suitor allege that 
 his son was not emancipated, — this must be maintained as an affirmative in plead- 
 ino- against the plea, that he was emancipated, for a state of freedom is presumed 
 against slavery which must always be proved. So if one allege that his house 
 is not liable to a particular servitude, or that money paid was not due and ow- 
 ing — for money paid is presumed to be done in accordance with duty. "70 N. Y. 604. 
 
 And, generally, where the right of action is founded on a negative obligation, 
 the burden of proving the negative is upon the plaintiff. Algie vs. Wood, 11 J. 
 & Spr. (N. Y.) 46. Noe vs. Gregory, 7 Daly 273. 
 
 Again, just what is alleged, and whether it be an affirmative or negative alle- 
 gation, is not always obvious. It may be determined by attention to the affirma- 
 tive idea tested by the nature of the proof which will support the allegation. 
 As if it be affirmed that " a few of the sailors were saved," — the proposition is 
 affirmative, because proof that two or three were sanded would support the alle- 
 
12 ONUS PROBANDI. 
 
 respect to the former of these, if a party assert affirmatively, 
 and it thereby becomes necessary to his caee to prove that a cer- 
 tain state of facts does ^mt exist, or that a particular thing is de- 
 ficient in its nature or insufficient for a particular purpose; these 
 although they resemble negatives are not such in reality ; they 
 are positive averments although expressed in the form of nega- 
 tives, and the party who makes them is bound to establish their 
 correctness. Thus in an issue out of Chancery, (2) directed to en- 
 quire whether certain land assigned for the payment of a legacy 
 was deficient in value, and issue was joined upon the deficiency,. 
 the one alleging that it was deficient, and the other that it was 
 not ; it was held by the Court, (Holt C. J. presiding) that though 
 the asserting that it was deficient is such an affirmative as im- 
 5* plies a negative, yet it is such an affirmative* as turns the 
 proof on those that plead it ; if he had joined the issue that the 
 lands were not of value, and the other had averred that they were,, 
 the proof then had lain on the other side (a). Again, in an 
 action of covenant against the lessee, where the breach is, in the 
 language of the covenant, that the defendant did not leave the 
 premises well repaired at the end of the term, the proof of the 
 breach lies on the plaintiff (6). And in the ease of Calder v. 
 Rutherford (e), which was an action against the executors of J. 
 S. the survivor of the two partners, on the breach of an agreement 
 
 a) Beaty va. Doi-mer, 12 Mod. 5i(i. (6) 1 Pliil. Ev. 183. (e) 3 B. & B. 302. 
 
 gation ; but if it be alleged that " fe^^■ of the sailors were saved," it would tend 
 to negative the " saved idea," because proof that almost all were lost would sup- 
 port the allegation, to wit :— that the sailors as a whole were under consideration, 
 and it is affirmed that they were not saved, but lost. Whately's Logic, B. 11, 
 Ch. 11, I 1. So it is fundamental in the law of pleading, that the question of af- 
 firraativeness and negativeness only arises after the affirmatives, negatives and 
 admissions are judicially interpreted according to law, for the single purpose of 
 determining upon whom the law imposes the burden of the affirmative of the 
 case, the issue, and consequently the right of beginning to remove the presump- 
 tion. 
 
 '1. It is held that the plaintiff would be called upon to prove the sanity of the 
 party, because the court in such case would presume that the judge directinn- the- 
 issue had considered that a prima facie case of madness had been made out 
 
ONUS PROBAND!. IS 
 
 signed by Gabriel S. for the house of J. & G. S., to pay lOOL 
 if the plaintiff would not consign, for one year, directly or in- 
 directly, any quantity of repacked herrings to the London 
 market, made up for the West India market, and in particular 
 to the house of J. & A. M., the plaintiff was called on to prove 
 the negative averment that he had not consigned any herrings in 
 the manner above mentioned. 
 
 § 5. But it is to be I'emarked in thesecond place, that by the af- 
 firmative of the issue is meant the affirmative in suhstuncc and 
 not the afiirmative in fonn, i. e. that the judges in examining 
 the record in order to see on whom the onus proband! and con- 
 sequently the right to begin lies, will consider not so much the 
 form of the pleadings, as the substantial question between the 
 _ parties, and will cast the onus probandi on the party with whom 
 the real afiirmative seems to lie (1). Considerable light has been 
 
 and Ijy orclcriug the party who relied upon the sanit}- to be the plaintiif, had in- 
 tended that the burden of proof shoukl devolve upon him. Frank ^'s. Frank, 2 
 M. k Eob. ,314. 
 
 1. The above statements readily dispose of confounding " nejialive avei- 
 ments or allegations in the negative, with those negati\es which traverse affirma- 
 tive allegations " mentioned ante I 3. 
 
 The law of juridicial allegation, i. e., pleading, is sai, jnrh, and does not neces- 
 sarily form a part even of the law of the logic of proof. 
 
 Pleading must conform to and grow out of — i<sue out of the settled jurispru- 
 dence of rights and remedies. 
 
 A declaration must be fornmlated to comprehend, first, a presumption and sec- 
 ond, the affirmative showing of liability. 
 
 1st. All persons are presumed to have duly discharged any obligation imposed 
 upon them by law. Best's Ev. | 448, Sill vs. Thomas, 8 G. & P. 7612. So it is 
 held in Starr et. als. vs. Peck. 1 Hill, 270, that breach of private duty, negli- 
 gence, fraud. Arc, are not to be presumed. And it is held that a licensed en- 
 gineer will be presumed to have obeyed the law rather than the illegal orders of 
 a Captain McMahon vs. Davidson, 12 Minn. 357. 
 
 So it is clear that the declaration must state a case which overcomes and com- 
 pletely negatives this preliminary presumption. 2d. That the liability of the de. 
 fendant must be affirmatively stated, whether it be based on nonfeasance or mal- 
 feasance. Dixon vs. the Columbus R. R. Co., 4 Biss. 137 ; Horan vs. Weiler, 41 
 Pa. 470. And 2nd, unless liability is clearly charged, Dickinson vs. Brick, :i X. 
 
14 ONUS PROBANDI. 
 
 ■J. L. (2 Pemi.) 694, a presumption will be indulged against it, a^ in case of neg - 
 ligence — that it was accident or mischance, &o., Smith vs. B. E. 37 Mo. 287, Ald- 
 ridge vs. Great West. E. E. Co. 3 Mann. & «i-. 515, 36 Mo. 13. A default juge- 
 ment does not import liability, it is only an admission of the facts as stated in 
 the declaration. Juhnson vs. Pierce, 12 Ark. 599, Smith vs. Carley, 8 Ind. 451, 
 :Elliott vs. Smfth, 1 Ala. 74. So it is well settled, in obedience to these princi- 
 ijjles, that on a motion to arrest after verdict, nothing will be deemed to have 
 fceen proved, but what is necessarily implied from what is alleged in the declara - 
 tion. Harding vs. Craigen, 8 Vt. 509, Vadaken vs. Soper, 1 Aik. (Vt.) 289 ; 
 Parwell et. a-ls. vs. Smith, 1 Harr (N. J.) 136 ; Spiers vs. Parker. 1 T. E. 141 ; 
 Marlin vs. O'Hara, Cowp. 825. But when a presumption of compliance with 
 law is clearly negatived, and liability affirmatively charged, tested by the re- 
 quirements of law, the defendant must plead negatively or affirmatively or both. 
 But what is a negative plea ? Ans. — A plea which puts the plaintiff upon proof, 
 Wilkes vs. Hopkins et. als., 6 Man & Gr. 36, — or in other words, a plea which 
 does not relieve him from proof, Bk. of Aub. vs. Weed, 19 Johns, 302. What is 
 an affirmative plea ? Ans. — A plea which by law relieves the plaintiff of proof, 
 Bk. of Aub. vs. Weed supra, but avoids the declaration by matter which the 
 plaintiff would not be bound to prove or disprove in the first instance on the gen- 
 ■eral issue or a negative plea. And when the defendant relies on his affirmative 
 ■plea, it is loaded with the same presumption against it as was the plaintiff's dec- 
 laration. And the language of the law is that this presumption operates against 
 the party who undertakes to free himself from liability. Pord vs. Simmons, 13 
 La. Ann. 397, Great West. E. E. Co. vs. Bacon, 30 111. 347, 1 Gall. 104, 150, 
 Eex. vs. Pemberton, 2 Burr. 10, 37, Eex. vs. Sarvis, Id. 148. Bliss vs. Brain- 
 ard, 41 N. H. 226. Solomon vs. Dreschler, 4 Minn. 278, Horan vs. Weiler, 41 Pa. 
 470, Toledo E. E. Co. vs. Pence, 68 111. 524, Young vs. Davis, 30 Ala. 213, Mar- 
 tin vs. Clark, 1 Hemst, 259. No presumptions will be indulged' in favor of ex- 
 emption of common law liability. Bdsall et. als. vs. Cam. & Am. E. E. Co., 50 
 N. Y. 661 ; Aetna Ins. Co. vs. Wheeler, 49 Id. 616. 
 
 Beardsly J., in Costigan vs. the Mow. & Hud. E. E. Co., 2 Denio 616, said : 
 " But first of all the defence set up should be proved by the one who set it up. 
 He seeks to be benifited by a particular matter of fact, and he should therefore, 
 prove the matter alleged liy him. The rule requires him to prove an affirmative 
 fact, whereas the opposite rule would call upon the plaintiff to prove a negative, 
 and therefore the proof should come from the defendant. He is the wrongdoer, 
 and presumptions beeween him and the person wronged, should be made in favor 
 of the latter. For this reason, therefore, the onus must in all such cases be upon 
 the defendant." So it will readily be seen that the " burden " as to the plead- 
 ings means the affirmative of the case — the issue as formulated by the pleadings, 
 and that these are statements of remediable rights and excusable and avoidable 
 
ONUS PROBANDI. 15 
 
 defences as matter of legal sulistauee to Avhieh language is not alwiiys readily and 
 easily adapted. But language being the only vehicle in which the legal " sub- 
 stance '' can be conveyed, legal right and remedies and defences will not in the 
 least degree be subordinated to the inflrmaties of either the language itself or 
 the brain and head that employs it. A grammatical affirmative, by way of a dou- 
 ble negative, as "not unfinished," ''not unpaid," "not negligently," etc., will be in- 
 terpreted, finished, paid, diligently, &c., if such be the clear object and purpose 
 in an allegation. It is sometimes intimated that a negative, which asserts ab- 
 sence of a subjective substance or fact, although such negative or absence must 
 be duly alleged, yet for some reason, say inconvenience, ab iiicoiwciui'nfi, the 
 party so alleging is relieved from proof because it is negative. But this notion 
 is without foundation in either law or philosophy. If the right of recovery or 
 defence depends upon the absence or i3resence of a state of facts, it is plain that 
 the allegations and proofs must correspond. Algie vs. AVood, I -t X. 1. 
 
 So in u controversy as to whether a certain will was in its effect, — the execu- 
 tion of a power in the devisor, and consequently a controversy as to the property 
 included under the devises." Tindal C. J. said, " Whether the testal^r had any 
 other real property on which the devise in ciuestion could operate, is a matter on 
 which, it is admitted, no evidence was given on either side ; and it was contended 
 on behalf of the defendant, that if Michael Mason, of Nantwick, had no other 
 real property than the house in Xantwick, so that the devise as to the real prop- 
 erty would be really inoperative, unless it could operate as an execution of the 
 power, it must be held so to operate, and that the defendant ought not to be call- 
 ed upon to prove negatively that Michael Mason, of Nantwick, had no other 
 property ; but it lay on the plaintiff to prove, affirmatively, that Michael Ma- 
 son, of Xantwick, had other property on which the devise could operate ; the ex- 
 istance of which, in the absence of any proof, was not to be presumed. 
 
 But it appears to us, that, where a party seeks, from extrinsic circumstances 
 to give an effect to an instrument which, on the face of it, it would not have, it 
 is incumbent on him to prove those circumstances, though involving the proof of 
 a negative ; for in the absence of extrinsic proof, the deed must have had its nat- 
 ural operation and no other." Doe. d. Caldcott vs. Johnson, 7 Man. & G-r. 1060. 
 So on the indictment in Com. vs. Bradford, 9 Mete. 271. Shaw (1 J. said, " that 
 the burden of proof was still on the government, to prove that the defendant 
 had no right to vote, and that he had not been an inhabitant of the cily six 
 months." In assumpsit on the warranty of a horse, when the plaintiff in his de- 
 claration averred that the horsi- toas not sownd,— plea that it was sound. It was 
 adjudged that the plaintiff had the affirmative and that the hrrach must )je 
 proved, no matter what the grammatical form of the proposition. Osborn vs. 
 Thompson, 9 C. & P., 337. So, for not loading a sufficient cargo on board a. 
 ship, Ilidgway vs. Ewbank, 2 M. .t Rob. 217 ; for not building according to spec- 
 
16 ONUS PROBANDI. 
 
 ification, Smith vs. Davis, 7 C. & P. 307,— and wlien tlie defendant in an action 
 against liim for attaching exempt household furniture, has shown that the same- 
 was talven by virtue of a legal process against the plaintiff— the bnrden is on tlie 
 plaintiff to show that enough was not left to satisfy the requirements of the law 
 (iay vs. Southworth, 113, Mass. 333; 18 X. H. 4,17, 33 Id. 345, 46 Me. 457, 2 R 
 T. 454, 22 Vt. 429; The legal sufficiency and quality of the allegations should 
 not be confounded with the proofs,— weight of evidence,— the order and effect of 
 them during the progress of the trial. In Central B. Co. vs. Butler, 2 Gray 132 
 Bigelow J. says : " The burden of proof (mi'inu'inj the njjinnativi' of the case 
 or issue) and the weight of evidence are two very different things. The former 
 remains on the party aflftrmiug a fact in support of his case, and does not change 
 in any aspect of the cause, — the latter shifts from side to side in the progress of 
 the trial, according to the nature and strength of the proof offered in support or 
 denial of the main fact (tt/^/niafc /ar)',-6 Otto 87) to be established. 
 
 In the case at the bar, the averment, which the plaintiff was bound to main- 
 tain, was, that the defendant was legally liable for the payment of tolls. In an- 
 swer to this the defendant did not aver any new and distinct fact, such as pay- 
 ment accord and satisfaction or releases, — but offered evidence to rebut this al- 
 h-fjed liability. By so doing he did not assume the burden of proof, which still 
 rested on the plaintiff's, — but only sought to rebut the prima facie case which 
 ti'ie plaintiff's had proved against him. ''I'he ruling of the court on tliis point was 
 therefore right. ^ 
 
 The evidence that other persons going to certain premises in Dracut were al- 
 lowed to pass the bridge free of toll was clearly competent, because it was in the 
 nature of an admission by the defendants that the estate in Dracut to which 
 these persons were going was included in the vote of the corporation ex^empt- 
 ing certain territory and persons residing thereon from liability to tolls. It being 
 admitted that the defendant and members of his family frecjuently passed over 
 the bridge to the same premises, the evidence had u direct bearing on the ques- 
 tion at issue between the parties." See ante \ 3 N. 1. 
 
 It will be seen by \ 3, N. I, that a legal presumption makes a pi-ima facie case, 
 and it is on this account held that an erroneous ruling during the trial, tending to 
 deprive a party of the l)enefits of a legal presumption or a prima facie case is re- 
 vcrsable error, and the error is neither waived or cured by the fact that the partv 
 upon whom the burden is improperly imposed, ineffectually attempts to make a 
 case under the ruling; Xickerson et. als. vs. Ruger et. als., 76 X. Y. 280. It is 
 said a party looses nothing by attempting to comply with the er/oneous ruling of 
 the court. Avery vs. Slack, 17 Wend. 85, Simpson vs. AVatrons, 3 Hill, 619, 
 Worrall vs. Parmelee, 1 X. Y. 519, Gates vs. "Ward, 17 Barb. 424. The author- 
 ity of the case of Philps vs. Town of Gates, U. S. C, 0. N. D., N. Y., 8 Rept'r, 
 677, is denied. Whether the presumption or prima facie case actually sliifts is 
 
& 
 
 ONUS PROBANDI. 17 
 
 thrown on this subject by some recent cases, and some good rules 
 laid down for the guidance of the practitioner. In the case of 
 Amos V. Hughes, (a), which was an action of assumpsit on a 
 contract to emboss calico in a workmanlike manner, and allee;in 
 as a breach that the defendant did not emboss it in a workman 
 like manner, but on the ^contrary embossed it in a bad *6 
 and unworkmanlike manner ; to which the defendant pleaded 
 that he did emboss the calico in a workmanlike manner, on which 
 issue was joined ; it was held by Alderson B. that the onus pro- 
 baudi lay on the plaintiiF; that questions of this kind were not 
 to be decided by simply ascertaining on which side the affir- 
 mative in point of form lay ; and he laid down, (what ap- 
 pears to be a correct rule on the subject) that the proper frsf 
 is to irhieh partij innddhc sinx-cssful if no eridencr at allvere given ; (2) 
 
 (a) 1 M. & Rob. 494. 
 a question for the jui-y. Cuale vs. E. R, Co., >[o. 23:i. 
 
 The error consists ill admitting or refusing' the offer of testimony tending tch 
 make out a jj/vniiY /ac/e case or rebut or avoid testimony having such n legal 
 tending. Xickerson et. als. vs. Eupar et. als.. Kiqira. Sec ? 10, /yifi-((. 
 
 2. A rule, no doubt, of some convenience ; but as a rule of judicial philosophy. 
 — there is but little in it. It is absurd to suppose a party could be successful 
 without cridciirr. There may, indeed, be no additional testimony offered by 
 either party except such as is offered the court liy the admissions and denials in 
 the pleading. Dwille vs. Roath, 29 Ga. 73.'!. But cc factis orituv lex, and it is 
 a solecisen to assume a judgment of law independent of the facts in a case. The 
 presumptions of fact in the pleadings are in law as effective as though found by 
 a jury, — and such presumption of fact is sufficient proof I 11 and I 3, N. 1. rio 
 the cjuestion of Beginning must, without any hypothesis, lie determined in the 
 absence of all evidence except the admissions and denials in the pleadings, as tho 
 act itself implies. The form of the interrogatory, supposition, or expedient re- 
 sorted to, to provoke the exact point of inqury can be of little practical moment 
 provided " the whole situation he grappled 'wifli." 
 
 The party who by intendments of law is entitled to judgment by the confes- 
 sions and admissions in the pleadings has, except for the purpose of the amount 
 of relief, no occasion for further testimony. This judgment, if on the part of 
 the plaintiff, can be invoked by supposing a motion for judgment non ohsfuiitr 
 veridicto, Schermerhorn vs. 8chermerhorn, 6 Wend. .513, if on the part of the 
 defendant, by a motion to arrest, and both motions can be considered at the same 
 time and in the same case. Bellows vs. Shannon, 2 Hill 88. 
 
18 ONUS PROBANDI. 
 
 that iu the principal case, supposing no evidence were given on 
 either side, the defendant would be entitled to the verdict, for it 
 was not to be assumed that the work was badly executed ; and 
 consequently that the onus probandi lay on the plaintift". And 
 in the case Mills v. Barber (&), which was an action of assump- 
 sit by the indorsee of a bill of exchange against the acceptor, to 
 which the defendant pleaded that the bill had been accepted 
 w'ithout consideration for the accommodation of S. B. the drawer, 
 and had been subsequently indorsed to the plaintiff without 
 consideration, to which the plaintiff replied that the said S. B. 
 indorsed the said bill to the plaintiff for good consideration, 
 and issue was taken thereon ; it was held by Alderson B. at the 
 trial, that the onus probandi lay on the defendant notwithstand- 
 ing the affirmative shape of the replication, and which ruling 
 was now confirmed by the court in banc ; and Alderson B. said, 
 ^'the replication is in the affirmative, but it is in answer to a neg- 
 ative: upon this question is it not the proper test to examine whether, 
 if the particular allegation be struck out of the plea, there would or 
 would not he a defence to the action ?'" 
 
 (6) 1 Mees. & Wels. 425. 
 
 Under the code, either party can move for judgment on the pleadings, by way 
 of summary demurrer, and the court will render judgment on the presumptions 
 and admissions in the pleadings, ? 2, N. 1, supra. So it is plain that the party 
 has the burden of the case or issue, and consequently must begin — and is en- 
 titled to begin, who has the initiative to protect himself from a default on ac- 
 count of his admissions in the pleadings. 
 
 We have then evolved a rule out of the law of pleading, to wit, that the onus 
 and right or KaUlity to begin is on the party who has relieved, by his plead- 
 ings, his adversary from proof i—^ho has givea co\or to his adversary's right 
 by admissions or avoiding or excusing negations or traverses; Oott vs. Beau- 
 mont 31 Mo. 118, Rogers vs. Diamond, 13 Ark. 474, Davidson vs. Henop, 1 Cr. 
 C. Ct. 280, Dunlay vs. Peters, Id. 403, Beal vs. Newton, Id. 404, Henderson vs. 
 Casteel, 3 Id. 365, Mason vs. Groom, 24 Ga. 211, Kimball vs. Aidair, 2 Blackf., 
 320, Waller vs. Morgan, 18 B. Mon. 136, Judge vs. Stone, 44 N. H. 593, Pussy 
 YS. Wright, 31 Pa. 387, Stevenson vs. Man, 9 111. 532, Hunter vs. Am. Pop. 
 Life Ins. Co., 4 Hun. 794, Smith vs. Sergent, 67 Barb. 243, Gross vs. Turner, 21 
 Vt. 438, Cross Keys Bridge Co. vs. Rawlin's, 3 Bing. N. C. 81, Cravens vs. San- 
 derson, 4 Ad. & El. 666, Gougle vs. Bryan, 2 Mees. & W. 779,'Harrino-ton et. 
 
ONUS PROBAjSH)!. 19 
 
 § 6. If the test here suggested be compared with that given by 
 the same learned judge in Amos v. Hughes (a), will be found, 
 7* that so far from being contradictory or inconsistent, *they 
 are the same proposition in different dresses, and only differ in 
 this, that the latter is expressed more generally, and both are tests 
 which apply to all cases, whether there be a presumption of law 
 in favour of the pleading of either party or not. The second test, 
 viz., that given in Mills v. Barber, (b) establishes this position ^ 
 that inasmuch as the two last pleadings on any record must contain 
 an affirmative and negative between them, (otherwise the issue is 
 not properly joined,) the test wherebyto discover on whomtheonus 
 probandi lies, is to conceive both the affirmative and negative ex. 
 punged, and then consider which party would be entitled to 
 succeed, as the onus probandi must lie on his adversary. Thus 
 in the case of Mills v. Barber, (b), suppose the averment in the plea 
 that " the said S. B. had indorsed the bill to the plaintiff w'thout con- 
 sidcTatiov," and the replication in answer to ib that " the said S. JB. 
 indorsed the said bill to the plaintiff for oonslde ration" had been both 
 struck out of the record, the plaintiff' would be entitled to recover 
 on the merits, because he had declared as indorsee of a bill of ex- 
 change against the defendant as the acceptor, and the first part of 
 the plea, viz., that the bill had been originally accepted without 
 consideration, would of itself be no defence to an action by an in- 
 dorsee, who is by law presumed to have given consideration for the 
 bill ; so that the second test applies very correctly here ; and when 
 the case came on for trial, suj)posing no evidence at all to have 
 been adduced according to the test given in Amos v. Hughes, {a) 
 the plaintiff'must have recovered, as it lay on the defendant to 
 
 («) 1 M. & Rot). 484. (6) 1 Mees. & Wels. 425. (6) 1 Meo3. & Wels. 433. 
 
 (a) 1 M. & Rob. 464 
 
 als. VS. Bishop, &c., 4 Bing. N. C. 77 ; Pearson vs. Rogers, 9 Ad. & El. 303, 
 Wilson vs. Craven, 8 Mecs. & W. 593. Again, the party who would fail on the 
 uncontroverted propositions in the pleadings must go forward, is but a comple- 
 ment or correlative of the test of the text in a subsequent part of this section, 
 
 to wit, to strike out the controverted allegations, and the party who would be 
 
 defaulted by judgment, must proceed. 
 
20 ONUS PROBANDI. 
 
 prove that no consideration had been given either for the accept- 
 ance or indorsement of the hill. 
 
 § 7. Again, suppose that in the former case of Amos. v. 
 Hughes (ff), we have recourse to the second test, or that suggested in 
 Mills V. Barber, {b) we shall find that it applies exactly ; for if in 
 8* Amos V. Hughes the last afiirmative and *uegative, viz., the 
 averment in the declaration that ^'' the defendant did not emboss the ral- 
 leo in a irorl; manlike manner" and the counter allegation in the 
 plea that " he did emboss the calico in a vortmanlike manner" were 
 both struck out of the record, the defendant must have had &. 
 verdict according to the test given in Mills v. Barber, (6) 
 since there would then have been no cause of action, because 
 no breach of contract, alleged on the record against him; and 
 when the case came on for trial the first test applied, that 
 if the plaintiff' gave no evidence to show that the calico had 
 been embossed in an unworkmanlike manner, and the defendant 
 gave none to the contrary, the defendant must have succeeded, as 
 the law would not presume in favor of the plaintiff's allegation, and 
 consequently the onus probandi lay upon him. So that the two 
 general rules for determining the onus probandi are, first, to con- 
 ceive the negative and afiirmative- allegations by which the issu- 
 is joined both struck out of the record, and the onus probandi 
 lies on the party against whom judgment must in their absence 
 pass ; and second, to consider at the trial which party would suc- 
 ceed if no evidence at all were given, as the onus probandi must 
 lie upon the adversary (1). 
 
 (a) 1 M. & Bob. 164. (6) X Mees. & Wela. +-25. (6) i Mees. & Wel3. iib. 
 
 \. The test here suggusted seems to meet with universal approval. Taylor's 
 Ev. I 3.38. Wharton's Bv. I 357. TFhartoii says, " Hence it may be stated as a 
 test of miiversal application, that whether the proposition be affirmative or neg- 
 ative, the party against whom judgment would be given, as to a particular issue, 
 supposing no proof to be offered on either, has him, whether he be plaintiff or de- 
 fendant, the burden of proof which he must satisfactorily sustain." Amos vs. 
 Hughes, 1 M. & Rob. 464 ; Doe vs. Rowlands, 9 0. & P. -735 ; Osborn vs. 
 Thompton, 9 C. & P. 337 ; Kidgway vs. Ewbank, 2 M. & Rob. 218 ; Huckraan 
 vs. Fimie, 3 M. & W. 505 ; Blkin vs. Janson, 13 M. & W. 655 ; Geach vs. Ino-all 
 
ONUS PROBANDI. 21 
 
 14 31. A- AV. 97 ; Ashbuy vs. Bates, 15 M. .t AV. 589 ; Mercer vs. AVhall, 5 (i. B. 
 4.-.8 : .Sutton v... Sndler, 3 C. B. (X. S.) 87 ; Bradley vs. MeKee, 5 Orauch 0. C. 
 298 ; Hatehberger vs. Ins. Co., 5 Biss. 106 ; Hankin vs. Squires, 5 Id. 186 ; 
 Pullerton vs. Bk. V. S., 1 Pet. 60V ; MeClellan vs. Crofton, 6 Me. 308 ; Xew 
 Haven Co; vs. Brown, 4G Me. 418 ; Shackford vs. Newington, 46 X. H. 415 ; 
 Kendall vs. Brown, 47 N. H. 186 ; Gilraore vs. IFilbur, 18 Pick 519; Beals vs! 
 Merriam, 11 Mete. 470 ; St John vs. E. E., 1 Allen 544 ; Pratt vs. Lambson, 6 
 Allen 457 Boarders vs. Tooney, 9 Allen 65 ; Central Bridge vs. Butter, 2 Grey 130 
 Dorr vs. Fisher, 1 Cush, 227 ; Morgan vs. Morse, 13 Gray 150 ; Pratt vs. Lang 
 don, 97 :S[ass. 97 ; Gray vs, Southworth, 113 Mass. 333 ; Xew Bedford vs. Hing- 
 hain, 117 Mass. 445 ; Cotheal vs. Talmadge, 1 E. D, Smith 573; Heineman vs. 
 Heard. 62 X''. Y. 448 ; Huntingdton vs. Conkey, 33 Barb. 220 ; Ayrault vs. 
 Chambcrlaid, Id. 233 : AVillard et als. vs. Thorn, 56 X. Y. 442 ; Zerby vs. :Miller. 
 16 Pa., St. 486 : Pittsburgh E. E. vs. Eose, 74 Pa. 362 ; Briceland vs. Cora.. Id, 
 463 ; Eeeve vs. Ins. Co., 39 Wise. 520 ; State vs. McGiulcy, 4 Ind. 7 ; Spaulding 
 vs. Harvey, 7 Ind. 429 ; Kent vs. T7hite, 27 Ind. 390 ; ililk vs. Moore, 39 111. 
 584; Multmon vs. Williamson, 69 111. 423 ; Hyde vs. Heath 75, 111. 381 ; "Wood- 
 ruff vs. Thurlby, 39 Iowa 344; Veiths vs. Hagge. 8 Iowa 163; Gruniinell vs. 
 Warner, 21 Iowa 11 ; Burton vs. Mason, 26 Iowa 392 ; Day vs. Eaquet, 14 Minn 
 273 ; Johnson vs. Gorman, 30 Ga. 612 ; Shuliman vs. Brantley, 50 Ala. 81 ; Hill 
 vs. X^irhols, 50 Als. 336 ; Brandon vs. Cabiness, 10 Ala. 155 ; Craig vs. Perois, 
 14 Eieh. Eq. 150 ; Carver vs. Harris, 19 La. Ann 621 ; Fo.x vs. Hilliard, 35 Miss. 
 160 ; Eichardson vs. George. 34 Mo. 104 ; Church vs. Pagin, 43 Mo. 123 ; Gale- 
 wood vs. Bolton, 48 Mo. 78 ; Henderson vs. State, 14 Tex 503 ; Mills vs. John- 
 son, 23 Te.\. 308 ; Luckhart vs. Ogden, 30 Cal. 547. 
 
 The same writer furtlier says " If there is a case made out against the defend- 
 ant, on which, if the plaintiff should close, a judgment would be sustained against 
 the defendant, then the defendant has on him the burden of proving a case l)y 
 which the ]]hiiutiffi case will be defeated." Tredwell vs. Joseph, 1 Sumn. 390 ; 
 E. Co. vs. Gladman, 15, TTal. 401 ; Briggs vs. Taylor, 28 Vt. 180; Gray vs. 
 Gardiner, 17 Mass. 188 : Davis vs. Jenny, 1 .Mete. 221 ; Attleboro' vs. Middle- 
 boro, 10 Pick. 378 ; Com. vs. Dayly, 4 Gray 209 ; Lewis vs. Smith, 107 Mass. 
 334 ; Walcott vs. Halcomb, 31 X. Y. 125 ; Elwell ct. als. vs. Cramberlin, 31 X. 
 Y. 611 ; Sullivan vs. E. E., 30 Pa. St. 235; Empire Trans. Co. vs. Wamshutta 
 Co , 63 Pa. St. 17 ; Zerbe vs. Miller, 16 Pa. St. 488 ; Winans vs. Winans, 19 X. 
 J. Eq. 220 ; Freeh vs. E. E., 39 Md. 574 ; Gough vs. Cram. 3 Md. Ch. 119 ; Peck 
 vs. Hunter, 7 Ind. 295 ; Kent vs. White, 27 Ind. 390 ; Southworth vs. Hoag, 42 
 111. 446 ; Adams Express Co. vs. Stellanners, 61 111. 184 ; Hale vs. Hazleton, 21 
 Wise. 620 ; Oastello vs. Landwehr, 28 Wise. 522 ; Ketchum vs. Express Co., 52 
 Mo. 390 ; Zemp vs. Willmiugton, 9 Eich. L. 84 ; Steele vs. Townsend, 37 Ala. 
 247 ; Peek vs. Chapman, 16 La. Ann. 366 ; Hutchins vs. Hamilton, 34 Tex. 290. 
 
£2 ONUS PROBANDI. 
 
 § 8. There are several other cases to be found in the books, which 
 illustrate the position that by the affirmative of the issue is- 
 meant the affirmative im substance ; thus in Shilock v. Passman, 
 (a), v^hich was assumpsit against an attorney, who, as the 
 declaration alleged, had undertook to procure the discharge 
 of the plaintiff" under insolvent debtors' act, and charged as a 
 breach that he did not use due diligence for that purpose ; to 
 which defendant pleaded, first, ITon assumpsit ; second, That 
 he did use due diligence, &c. Alderson B. said, the second is- 
 9* sue is to be proved by the plaintiff, the defendant says that 
 he did use due diligence, yet that is a negative on the plaint- 
 iff''s allegation of negligence. (1) In Scott v. Lewis (b), which 
 was an action of trover by the assignee of a bankrupt for 
 some furniture, the possession of which was laid in the bank- 
 rupt before the bankruptcy', and had since been converted by 
 th« defendant ; to which defendant pleaded in justification that 
 he as sheriff" took the goods under a fi. fa. which had been is- 
 sued at the suit of R. G-. before the bankruptcy ; to this the 
 plaintiff" replied, that the fi. fa. was obtained on a cognovit ac- 
 tionem, which had been signed by the bankrupt in an action 
 brought by coUusian for the purpose of giving a fraudulent pre- 
 ference ; to this the defendant rejoined, that the action was com- 
 menced adverselj"- and not for the purpose of fraudulent prefer- 
 ence ; and per Coleridge J. " Questions of this sort must be 
 decided more on what justice to the parties requires than on any 
 strict rule of practice ; here the real affimative is the proof of 
 collusion, and lies on the plaintiff"." 
 
 It may be here observed that thi§ last case is not exactly in 
 point ; it seems to have escaped observation, that there was a pre- 
 sumption of law that no party has been guilty of fraud or covin, 
 viz., against the replication, and therefore, as will be presently' 
 shown, if the replication had been in the negative in the strong- 
 est terms, still the onus would have lain on the party who as- 
 serted the fraud to. prove it. The case has only been introduced 
 here to show the recognition, by the learned judge who presided, 
 of the rule under considei-ation. 
 
 (a) 7 C. & p. 291. (6)ib. 347. 
 
 1. See 1 3 N. I. 
 
ONUS PROBAND!. 23 
 
 § 9. The two following cases however are more directly to the 
 purpose. In Smith v. Davies (a) which was an action of assumpsit 
 for not building a cei'tain house according to a specification, the de- 
 fendant pleaded first, That he did build them *accordiii£ to 10* 
 that specification, and second, That he had by license from the 
 plaintiff deviated from that specification ; and per Alderson B. 
 ■'•' The firet issue is on the plaintiff, for though it is in point of form 
 an aflarmative on the defendant, yet it is really a negative, because 
 it in realit}- denies thejplaintfl"'s averment that the defendant had 
 not built according to the specification, a fact which, unless the 
 plaintifl'proves, he cannot recover." And lastly, in the case of 
 Soward v. Legatt (6), which was an action of covenant on a demise 
 by the plaintift'and one J. S., whereby the defendant was bound to 
 repair a messuage, to paint the outside woodwork once every three 
 _years, and the inside woodwork within the last three years of 
 the duration of the lease, and charged as bi-eaches, that the de- 
 fendant had performed none of the three, but had left the house 
 ■dilapidated ; to which the defendant pleaded that he did paint 
 tha outside woodwork every three years during the lease — speci- 
 fying the times, and the whole of the inside parts that were 
 usually painted, within three years previous to the determination 
 ■of the lease, viz., at such a time, and did not leave the house dil- 
 apidated, concluding to the country. Lord Abinger, C. B. said, 
 " Looking at these things according to common sense, we should 
 ■consider what is the substantive fact to be made out, and on 
 whom it lies to make it out. It is not so much the form of the 
 issue which ought to be considered, as the substance and efl:ect of 
 it. In many cases a party, by a little difference in the drawing 
 •of his pleadings, might make it either affirmative or negative as 
 he pleased. I shall endeavor by my own view to arrive at the 
 substance of thfe issue ;" and he accordingly held that it lay on 
 the plaintiff' to prove his case (1). 
 
 (■a) 7 C. jt P. 307. (.b) id, 613. 
 
 1. This proposition contains an element of error. When a case is presented to 
 the pleader he has to deal with a condition of facts, whose concomitants, ante- 
 pedants and consequents are all fixed and unalteraVjle. He has to deal with 
 
24 ONUS PROBAND!. 
 
 them as they are in the system of things. They cannot be made to change 
 places lilie characters upon the chess-board. The law interprets them as they ac- 
 tually are, and pleading is a science adapted to the presenting of them as they 
 actually exist according to their legal effect as to the remedy sought or the de- 
 fence to be set up. The pleading nikist be adapted to the facts — not the facts to 
 the pleading. If a condition of facts in legal intendment only amount to a ne- 
 gative of the plaintiffs claim as set up — no shift in pleading can make them the 
 bases of an affirmative plea. If on the other hand, the facts are really facts of 
 avoidance, — they cannot be negatively pleaded. 
 
 They may, by law, be available as testimony under the general issue ; — but this 
 is because in such instances the law permits a party to forego pleading altogether — 
 General issue as matter of pleading — is a mere fiction so far as allowing affirma- 
 tive defences under it. Facts which by legal intendiment are negative or affirm- 
 ative respecting a given controversy^cannot have their legally pleadable charac- 
 ter changed by the mere form of pleading, State vs. Melton, 8 Mo. 415, Denny 
 vs. Booker, 2 Bibb. 427, Chambers vs. Hunt, 3 Harr. (N. J.) 341, Mar.sh vs. 
 Peire 4 Kawl. 273, as the following case will fully illustrate. Wilkes vs. Hop- 
 kins et. al., 6 Man. & Grange. 36, Assumsit. The declaration stated that, in ccn- 
 sideration that the plaintiff would, for the accommodation of the defendants, draw 
 a bill of exchange on them for 121 £ 10 S., and would endorse and deliver the 
 same to them, the defendants promised the plaintiff that they would duly pay 
 the said bill when due, and would indemnify the plaintiff against the payment of 
 the said 121 £ 10 S, and all charges and expenses which he should bear or sus- 
 tain, or to which he might be put, in respect thereof. Averment ; that the plain 
 tiff, relying, &c., afterwards, to wit : on the 25th of June, 1825, drew a bill of 
 exchange on the defendants, and thereby requested them two months after date 
 thereof, to pay to his order 121 £ 10 S.,>alue received, and at their request en- 
 dorsed the bill and delivered it to them ; that the defendants, negotiated the 
 same ; and that afterward, to wit: on the 23d of August, 1825, when the bill be- 
 came due, the defendants were required to pay the same. Breach ; That the de- 
 fendants did not, nor would then or any other time, pay the same, but wholly re- 
 fused so to do, by reason whereof the plaintiff, as the drawer of the bill, was com- 
 pelled to pay, and did pay to the holder of such bill £10 for interest and 
 charges thereon, and paid also £10 for costs and charges incurred by the plaintiff 
 on occasion of his being sued by such holder, and for other costs and charges. 
 Plea by defendant Nichols that the defendants did duly pay the bill when it be- 
 came due, and that the plaintiff did not bear, nor was he put to any costs or 
 charges by reason ot his drawing such bill modo et forma concluding with a 
 verification. To this plea the plaintiff demurred specially assigning for cause 
 that it ought to have concluded to the country. 
 
 Dowling Serg't in support of the demurrer, submitted that the plea concluded! 
 
ONUS PROBANDI. 25 
 
 improperly, as it contained a direct denial of the breach of the contract alleged 
 in the declaration. 
 
 Talford Serg't, contra referred to Ensall vs. Smith, 1 C. M. & E. 522 ; 5 Tyr., 
 141 ; Goodchild vs. Pledge, 1 M. & W. 463 ; 5 Dowl. P. 0. 89 ; Moses vs. Levy, 
 4 Q. B. 213 ; as authorities that a plea of payment must conclude with a verifi- 
 cation. [Maule J. This is not a plea of payment in discharge of the cause of 
 action]. The plea contains an affirmative allegation. [Tendal, C. J. So in an 
 action for a breach of covenant to repair ; a plea, that the defendant did repair, 
 is affirmative, but it concludes to the country]. The promise laid in the declara- 
 lion is not merely to pay the bill, but also to indemnify the plaintiff against the 
 payment thereof, and all charges and expenses to which he may be put. [Cres- 
 well, J. If the defendants, by the original contract had not been bound to pay 
 the bill, but merely to indemnify the plaintiff, a plea of payment would not have 
 been a mere traverse. 
 
 Tindal, C. J. The declaration contains a direct denial that the defendants 
 paid the bill. The plea states that they did pay it. This is, therefore, simply a 
 traverse of the allegation in the declaration, Talfordo Serg't, then prayed and 
 obtained leave to amend. 
 
 Tn the ordinary plea of payment, the defendant alleges neio matter occurriag 
 after a breach, — payment and acceptance in discharge of the breach. Here the 
 payment negatives the breach itself. 
 
 At common law, a plea, replication, or subsec^uent pleading, which contained 
 new affirmafiir matter, concluded with a verification — an assertion of the ability 
 of pleader to prove the matter alleged, (though without actually producing his 
 secta, as in declaring, which he might not be prepared to do)— and a prayer of 
 judgment, by which the adverse party was invited to answer him. 
 
 Secondly — when the affirmative in the plea, &c., merely traversed a negative 
 allegation of the adverse party, the conclusion was to the contrary. 
 
 Thirdly— when the plea, &c., contained new negative matter, it concluded with 
 a prayer of judgment ; but without a verification, there being nothing for the 
 party pleading such a plea to prove. Bodenham vs. Hill, 7 M. & W. 274^ 
 Parke, B., said " I think the good sense of the matter is, that a party should not 
 be required to verify that which it does not lie upon him to prove." 
 
 Fourthly— when negative matter in the plea, &c., mere]j traverficd affirmative 
 matter in the declaration, &c., the plea, &c., concluded to the contrary. 
 
 In the principle case the former part of the plea belongs to the second, the 
 latter part to the fourth, of these divisioils. 
 
 In framing the new rules of pleading (H. 4, W. 4, 3 Nev. & M. 5, 10 Bing. 
 467) the judges, when they discarded the prayer of the judgment, appear to 
 have considered that the termination of every pleading would still be distinctly 
 marked, either by tendering a verification, or by praying a jury, and to haye left 
 
26 ONUS PROBANDI. 
 
 § 10. If aoy of the four last cited cases, or indeed any of those 
 which follow, be tried by either of the tests which are given in 
 11* Amos V. Hughes, (a) and Mills v. Barber, (b) the results 
 will *be found to tally exactly with those given by the decisions 
 of those cases ; an additional proof, if any were wanting, of the 
 extreme correctness and universality of those rules. 
 
 We have hitherto been proceeding on the supposition that the 
 affirmative and negative allegations which compose the issue, 
 were propositions which enjoyed an equal share of probability, i. e 
 in the absence of all evidence on either side, the mind would sup- 
 pose one quite as likely to be true as the other (1). This, however, 
 
 (a) 1 M. & Rob. 494. (6) 1 Mees. Js, Wels. 426. 
 
 the pleadings coming witliin the tliird of the above classes unprovided lor. So 
 non infregit convenfionem (has not broken his contract), which is a double neg- 
 ative, equivalent to tenuit conventionem (he has perfermed his contract) i.s, in a 
 few cases when the plea is allowed properly concluded to the contrary. Reporters. 
 The sum of the matter is, the pleading must be adapted to the proof — the touch- 
 stone of which is the burden of proof. Seargeant J., in Judge, &c., vs. Stone, 
 44 N. H. 603, says, " Chesley vs. Chesley, 37 N. H. 229, was where there was no 
 proper pleadings in the case. Each party had made a statement before a com- 
 missioner, and it was found that the substance of the defendants' statement, was 
 a gen;ral denial of the plaintiff's case, and amounted substantially to the general 
 issue, and hence that the plaintiff should begin and close. The head note in this 
 case, and some expressions in the opinion, go farther than the tacts in the case 
 warrant, or the authorities quoted will justify. What the case decides is, — that 
 the court will consider the substance of the pleadings more than the form, and 
 will consider wbat is the substantial fact to be proved, and on whom it rests to 
 prove it ; and if the primary burden of proof rests on the plaintiff, he must, of 
 course, begin, and shall have the right to close. 
 
 The attention of the court was only called to the issue formed by the defend- 
 ant's pleading to the plaintiff's declaration, and if anything was in that way left 
 for the plaintiff first to prove, he was entitled also to close." 
 
 1. As shown in ? 3 N. 1 & § 5 N. 1, ante, there is no presumption of the ab- 
 solute truth of either party's allegation when controverted any farther than to 
 impose the burden of the case, i. e., the burden of proof upon one party or the 
 other ; except, perhaps, wh^-e the court will take judicial notice of the absolute 
 
 truth or falsity of the proposition contained in the allegation, such as a plea 
 
 contradicting the record or imputing fraud to the court. Middleton vs. Ames 
 7 Vt., 168,— or false, in fact. Stewart vs. Hotchkiss, 2 Cow. 634, Richley vs! 
 
ONUS PROBAND!. 27 
 
 Proove, 1 Barn & Or. 286, Olaflin vs. Griffiu, 8 Bosw. 689. The court has power 
 to strike out a defence as sham upon the sole ground that it is false. McCarty 
 vs. O'Donnell, 1 Eobt. 431, Slack vs. Cotton, 2 E. D. Sm. 398. But the quanti- . 
 ty and quality of the proof at the trial as influencing the burden at subsequent 
 stages of the investigation is what the learned author is preparing — laying the 
 gi-ound to illustrate and explain. The initiatory burden conferring the right of 
 going forward and opening the case before the jury, and producing testimony 
 sufficient to establish his prima facie case at least, or so much as to change the 
 burden on the face of the pleadings, must be determined as matter of law in the 
 first instance from the pleadings by the legal admissions and denials. The char- 
 acter of a suit is determined by the declaration and not by the plea, Lyon vs. 
 Mottuse, 19 Ala. 463, Welsh vs. Darrah, 52 N. Y. 590, and it must be assumed 
 that the pleader has stated his claim as strongly as he can safely, Bartlett vs. 
 Prescott, 41 X. H., 493, and where a party has, by his own fault, led another in- 
 to a mistake in pleading, he cannot take advantage of his own wrong. McPher 
 son vs. Melhiuch, 2 Wend. 671, Sands vs. Bullock, Id. 680. So it is held, that 
 averments of material and traversible facts should be certain and positive, Hart 
 vs. Eose, 1 Hemst. 238, that the burden of the issue may be clear. The right of 
 opening statement and proof, as will be seen in a subsequent part of this treatise, 
 is the legal effect of the burden caused by the leading intendments resulting from 
 the proper interpretation of the admissions and denials in the pleadings. 
 
 Hornblower, C. J., in Chambers vs. Hunt, 3 Harr (N. J.) 341, says, " It is a 
 rule founded in reason, and the nature of things, that the party holding the af- 
 firmative of the is-Eue, must begin lhe proof and is entitled to the open and re- 
 ply, Cooper vs. Wakely, 3 Car. & P. 474, Hodges vs. Holden, 3 Camp. E. 366, 
 Doe. vs. Corbett, Id. 368, Jackson vs. Hasketh, 2 Stark, E 518, Eevett vs. Bra- 
 ham. 4 T. E. 497, Bedell vs. Eussell, Ey. & Mo. 293, Cotton vs. James, 3 Curr. 
 & P. 505. 
 
 Indeed, I do not know an exception to the rule, and it is the same in leplevin 
 as in other actions. It is so laid doAvn by Mr. Chitty, in his general i)iuctice. 
 Tit. Eep.,— by Bailey, J. in.. 2 ,'^tark. E. 518,— by Lord Tenterdon, C. J., in Cur- 
 tis vs. Wheeler, 4 Car. & P. 196. So. too, in Williams vs. Thomas. Id. 234, Eog- 
 ers vs. Arnald, 12 Wend. 36, and Marsh vs. Pier, 4 Eawl, 273. I have cited 
 these cases for the sake of reference, not because I suppose the learned judge, 
 before whom the cause was tried, was ignorant of the rule which gives the open- 
 ing aud reply to the party holding the affiimative. Hjs error lay in supposing 
 that in this case the defendant held the affirmative side of the issue. Some em- 
 barrassment has arisen on this point, from denominating the plea in this case, a 
 special plea in bar. It is not such, correctly speaking. 
 
 A special plea in bar admifs and avoids. It admits all the material allega- 
 tions in the declaration, and then by setting np— affirmatively, some new matter 
 
^S ONUS PEOBANDl. 
 
 cottsist3iit with tho33 allegations, but tiking away ths plaintiffs right to resover. 
 Hence, upon a replication denying such new matter and concluding to the coun- 
 try, ths proof invariably lies on the defendant. Infancy, coverture, payment ac- 
 cord and satisfaction, or a release, are all familiar instances of a special plea in 
 bar. Such pleas admit the facts stated in the declaration, and consequently, the 
 matter pleaded in bar being new and affirmative matter, must, if it is denied by 
 -the replication, be proved by the defendant, as pleaded. 
 
 Gut the plea in replevin, of property in the defendant, or a third person, and 
 hot in the plaintiff is not an affirmative plea— it admits nothing— it does not even 
 admit the taking. Marsh vs. Pier, 4 Bawl's, R. 273, 288, G-ilb. on Eeplev. 127 
 Such a plea is wholly negative in its character, — it denies the plaintiff's title and 
 takes away his right to deliverance, — it necessarily compels the plahitiff to reif 
 firm his title and consequently to prove it on the trial." 
 
 But the shifting presumptions of fact changing the burden at the trial is well 
 illustrated by PoUand, C. J., in Gross vs. Turnor, 21 Vt. 439. He says : " The 
 defendant had pleaded the general issue, and this, of course, required the plaintiff 
 to take the lead in the testimony, so far as to establish, primi facir, his right of 
 action against the defendant. So far as the defendant proposed to dispute the 
 plaintiff's right to recover against him, by directly denying or rebutting, what 
 the plaintiff had thus proved against him, he was bound to do it, when the plain- 
 tiff rested ; after which, the j)laintiff would have the right to introduce farther 
 testimony, not only to rebut what the defendant had proved, but also to strength- 
 en and support his cause of action, as first attempted to be proved ; (The better 
 rule is that as against mere negative defenses all affirmative evidence should be 
 introduced together, and then be confined technically to evidence in reply. Ford 
 vs. Niles, 1 Hill 402, Hustings vs. Palmer, 29 Weed. 225, and see generally 
 Chap. 11, infra), and the defendant would not again be permitted to give further 
 evidence upon that point. [The rule supposes, however, that the case as first 
 made by the plaintiff', shall be calculated to appraise the defendant of the 
 ground on which the right of recovery is finally to be supported. Glayers & 
 Morse vs. Ferris, 10 Vt. 113, substantially affirming the rule in N. Y). But 
 in the present case, the defendant, after the plaintiff had made out a, prima facie 
 ease and rested, did not attempt to disprove, or rebut, any fact which the plain- 
 tiff had proved, but introduced evidence, under his pleas in bar, to establish an 
 independent, substantive fact, showing a discharge of the claim which the plain- 
 tiff had proved against him. Upon the issue thus raised the defendant was 
 obliged to take and did take the affirmative ; and we do not think that upon this 
 he was bound to anticipate what answer the plaintiff could or would make to it 
 — but might content himscdt, in the outset, by establishing such defence prima 
 facie, with the same right to sustain it by rebutting evidence, in case it was at- 
 
ONUS PROBANDI. 29 
 
 tacked by the plaintiff, as the plaintiff had as to the issue, when the affirmative 
 ground belonged to him. 
 
 If, in this case, the plaintiff, instead of contradicting what was proved by the 
 defendant,ihad set up new or substantive matter, — such as demand and refusal, he 
 would again have had the affirmative of the issue, and the right again to rest 
 upon a, prima facie showing. In short, we think the right of opening or clos- 
 ing the evidence in a case does not belong either to the plaintiff or defendant, as 
 such, but depends entirely upon which party takes the affirmative of the issue ; — 
 au<l the right to rest on a, prima facie showing is mutual and belongs as well to 
 a defendant as to a plaintiff." 
 
 To prove a certain fact may recjuire strong or slight evidence according to the 
 state of the law on such cjuestions. Shaw, C. J., says, in Com. vs. Bradford, 9 
 Pick. 271, cited ? 5 X. 1." If, for instance, -x. person should present himself as a 
 voter and an inhabitant, and some evidence be given, that he had not been known 
 or seen here till a recent period, — proof that he first came to a lodging within 
 the city, within n few days or weeks previous to the election, — that he was not 
 before known to those persons who would be likely to know all resident inhabi- 
 tants — such as police officers, tax collectors, persons employed to collect names 
 for a directory and the like, — and he should offer no proof on that subject, such 
 proof being manifestly within his power, it would be strong evidence, in support 
 of the negative to be proved, that he had not been a resident inhabitant. 
 
 Some maxims [mea)iinfj presumptions), to. on the subject of domicile, are to 
 be taken into consideration, and probably were regarded, by the learned judge, 
 as sufficient to change the hunlen of proof. These are, that a. person can have 
 but one domicile at one time — that he must have a domicile somewhere, and that 
 one domicile continues till another is acquired." 
 
 But as shown in ? 3, 5 & 10, supra, the burden as to opening and closing, so 
 far as opening and closing the argument is concerned, it being derived from the 
 pleadings, does not change. Sergent, J., in Judge, &c., vs. Stone, 44 N. H. 602, 
 says : " In Bump vs. Smith, 11 N. H. 48, where the general issue was pleaded, 
 with a brief statement of a justification, it was held that the general issue im- 
 posed upon the plaintifiF the burden of making out his whole case before' the mat- 
 ter in the brief statement comes in issue at all. The same is true where special 
 pleas are pleaded with the general issue, and hence it has always been the prac- 
 tice for the plaintiff's counsel to open and close when the general issue is pleaded, 
 whatever other matters may be pleaded specially or given notice of by brief 
 .statement, Toppan vs. Jenness, 21 N. H, 232, Ayer vs. Austin, (i Pick. 225, Bel- 
 knap vs. Wendell, 21 N. H. 175, where it is said by Gilchrist, C. J., that the 
 point in issue is to be proved by the party who asserts the affirmative, and where 
 the affirmative is upon a party, he has the right to open and close, and this is the 
 case, though the burden of proof may shift in the course of the trial ; that is. 
 
30 ONUS PROBAND!. 
 
 is far from being always the case, as the allegation made by one- 
 party, whether in its nature affirmative or negative, and whether 
 the subject-matter of discussion be a legal one or not, may be far 
 the most probable of the two, as being more in accordance with 
 our experience and knowledge of things, and their natural con- 
 nection with each other : when this is the case, that proposition 
 is said to have a presumption in its favour, and the contrary one- 
 a presumption against it ; which state of things give rise to the- 
 second case of the general rule above mentioned ; viz., where 
 there are some antecedent grounds for believing the allegation of 
 one party more probable than that of the other ; or, where there- 
 is a presumption, as it is called, in favour of that allegation. Pre- 
 sumption is correctly defined by Mr. Starkie, (c) to be " an infer- 
 
 (c) 3 Stai-k, Ev. 1234 
 the party who has the first affirmative issue to prove — Who has the burden of 
 proof on him in the first instance, is to open and close. Russ vs. Gould, 5 GreenL 
 204, is to the same effect. 
 
 Whenever the general issue is plsaded with a special plea of justification, or- 
 the like, then the burden of proof shifts iu the course of the trial. The plaintiff 
 must first prove his case, so as to entitle him to recover under the general issue. 
 If he did not do this, the defendant would be entitled to a verdict on that issue, 
 and he need nut then trouble himself to prove his justification. But ihe primary 
 burden being on the plaintiff, he first proves his case. When this is done, the- 
 verdict would be for him on that issue, unless the defendant proves his justifica- 
 tion. 
 
 The burden of proof then shifts and the defendant has the burden of the sec- 
 ond issue ; still the plaintiff must open and close, because the primary burden 
 of proof is on Mm, Brooks vs. Barrett, "7 Pick. 100, Comstock vs. Huldyme, 8 
 Conn. 2G1, in which Williams, J., says : " The plaintiff begins, and has the right 
 of reply in all cases where the defendants pleadings or any part of them denj- 
 the whole or any part of the plaintiff's pleadings, so as to leave any affirmative- 
 allegation on his side to be established by proof." In Thurston vs. Kennet, 22 
 X. H. 1.12, the general issue was pleaded, and the plaintiff opened and closed^ 
 The same was true in Buzzell vs. Snell, 25 X. H. 478, though there the defendant 
 on trial offered to make certain admissions, not made in his pleadino-s, for the- 
 purpose of gaining the right to open and close ; but it was settled that this right 
 must depend upon the form of the issue raised by the pleadings, and the genera 
 issue, throwing the primary burden of proof upon the plaintiff he had also the- 
 close." 
 
ONUS PROBANBI. St 
 
 enee as to the existence of one fact, from the existence of some 
 other fact, founded on a previous experience of their connection:" 
 and a^^ain, by the Roman law, "prsesumptio est anticipatio 
 judicii, de rebus incertis, ex eo quod plerumque fit percepta; 
 etenim anticipare est idem penitus quod prsesumere {d). 
 
 § 11. The efiect of a presumption in favour of any proposition 
 is to transfer the onus probandi to the party who asserts the con- 
 trary, (a) so that the party who asserts the negative has a pre- 
 presumption in his favour, it does not aff'ect the general rule 
 further than to aiFord an additional reason for casting the onus 
 probandi on him who asserts the affirmative. But where there 
 is a presumption in favour of the affirmative allegation, then the 
 onus probandi is cast on the adversary, even though he may 
 thereby be called on to prove a negative, (a) Thus, if goods proved 
 to have been stolen, are fonnd shortly after in the possession of a 
 particular individual, this raises a presumption that he was the 
 thief (1) and in the event of his refusing or neglecting to show 
 how he came by them, will fully warrant his conviction {h). A-iii 
 if a landlord give a receipt for rent due at a certain day, all 
 
 (d) Hub. ProelJ. C. Lil). 22Tit.3. (a) 1 Phil. Ev. 187. (6) ib. 157. 
 
 1. In Ingalls YS. State S. C. of Wis. 1880, 9 Reporter 695 Taylor, J., says : " It k 
 also urged by the learned counsel for the plaintiff in error, that the Circuit Judge 
 in his instructions to the jury, gave too muclj importance to the evidence of the 
 possession of the stolen goods, or some part of them, by the accused shortly after 
 the larceny. The effect of such evidence was very ably discussed by the late 
 Chief J. Dixon, in Graves vs. The State, 12 Wis. 591, and more recently by 
 Justice Orton in The State vs. Snell, 46 Id. 5'24. The rule to be derived from 
 these cases, and which is sustained by the late elementary writers upon evidence 
 in criminal cases, is that the possession of the stolen goods by the accused recent^- 
 ly after the larceny, does not raise any legal presumption of the guilt of the party 
 so found in possession. The fact of the possession of the stolen goods by the 
 accused is evidence tending to prove his guilt, but is in no sense conclusive of 
 his guilt, nor does his guilt follow as a presumption of law unless such possessioa 
 be explained by the accused. The courts of California have held that it was 
 error to charge the jury that they should convict the accused upon the mere 
 proof of the possession of the stolen property I'eccntly after the larceny. People 
 vs. Ah. Ki. 20 Cal. 177, Peop. vs. Chambers, 18 nb. 382, Peop. vs. Levison, IS 
 Ib. 98." 
 
S2 ONUS PROBANDI. 
 
 former rent is presumed to be paid, because it is not likely (al- 
 though perfectly possible) that he would not take in first the debts 
 •of longest standing (c). 
 
 Presumptions of this kind exist independent of human laws' 
 they are a natural process of reasoning adopted by the mind, in 
 order to arrive at truth, in cases where positive and and direct 
 evidence is not to be had ; and after laws have been established, 
 these presumptions, as one of the means of investigating truth, 
 still continue to be recognized and acted on. (1). 
 
 § 1 2. But besides these natural presumptions,or preswrn^^/ons of 
 fact as they are called, there is another class, which are designated 
 legal or aitificial ones ; i. e. " such as derive from the law any tech- 
 nical or articifial meaning beyond their mere natural tendency to 
 produce belief," (a) and these are of two kinds, which we shall 
 proceed to explain. By the law of England, questions of fact 
 are to be determined and decided by a jury (2), and not by the 
 judges, who cannot therefore, of themselves,- make any natural 
 presumption so as thereby to detormine the rights of the litigant 
 
 (0) 1 Pliil. Ev. 147. (a) 3 Stark. Ev. 1234. 
 
 1 . Presumptions are allowed where the facts to be presumed are consistent 
 with duty, trust, or power authorized, and tend to subserve the purpose of justice. 
 But when the act would be unauthorized by the trust or office, or are contrary to 
 the duty ot the party assuming the power, no such presumption can be admitted 
 Rowan vs. Lamb. 4 Greene 468 ; so there is no presumption of exemption from 
 ■common law inability — see Carriers. 
 
 2. It is the office of a jury to find facts upon conflicting evidence (Cai-nes vs. 
 Piatt, 1 Sweeny 146, Hagues vs. Thomas 7 Ind. 38, Gilispie vs. Batter, 15 Ala. 276 
 .Schwartzwelder vs. U. S. B'k 1 J. J. Marsh, 38, Tood vs. Whitney, 27 Me., 480' 
 Eeicli vs. Eeid 11 Tex. 585, Lindsay vs. Lindsay 11 Vt. 621, not from personal 
 knowledge, but from the testimony of others who have personal knowledge of the 
 facts, Clarke vs. Eobinson, 5 B. Mon. 55, and from the facts, it is exclusively their 
 province to draw all inferences and presumptions of fact as well as their applica 
 tion to the case in hand ; Allison vs. State, 42 Ind. 384 ; Salter vs. Myers, 5 B 
 Mon. 280 ; Mundine vs. Gold, 5 Port (Ala.) 215 ; so on the other hand the find 
 ing of a jury on the whole evidence in a cause, must be taken as negativing all 
 facts, which the party against whom the verdict is given, has attempted to infer 
 from, or establish by the evidence (Hepburn vs. Dubois, 12 Pet. 375 ;) but thi s 
 power is not a power of the will merely, — it is a power involving judgment and 
 
ONUS PROBANDI. 33 
 
 discretion, and must be in a reasonable degree subject to those restraints which 
 judgment and discretion imply, Duzonbury vs. Duzenbury, 14 B. Mon. 481. 
 
 The credibility of the witness is exclusively for the jury as well as the question 
 whether the testimony of a witness is rendered suspicious by any of the facts 
 proved Van Yicter vs. iEcKillup, 7 Blackf. 578 ; yet while the effect of the 
 ■evidence is for the jury, they, in considering the weight of the evidence— the 
 ■credit due to the respective witnesses, may not without reasonable or justifiable 
 grounds disbelieve any witness. They have no right to discredit an unimpeached 
 uncontradicted witness, who testifies fairly, and gives clear, rational consistent and 
 relevant testimony, (Seibert vs. Erte K, E. Co., 49 Barb. 483) and this rule ap- 
 plies to the testimony of the parties to the cause equally to that of other per- 
 sons, Burnett vs. Harris, 50 Barb. 379. 
 
 Again, it is true in many cases that when the facts of a case are undisputed, 
 the effect of them is for the judgment of the court and not for the discretion of 
 jury Carnes vs. Piatt, 1 Sweeny 146 ; Gulick vs. Grover, 4 Xv. 473, this is true 
 in that class of cases where the existence of such facts come in question, rather 
 than were deductions or iiiferences are to be made frum them, and whether the 
 facts be disputed or undisputed, if different minds may honestly draw different 
 •conclusion from them, the case is properly for the jury, E. E. Co. vs. Stout, 17 
 IVall. 657 ; Kansas Pacific E. E. Co. vs. Pointer, 14 Kan. 37 ; Thurbur vs. Har- 
 lem Bridge etc.. E. E. Co., 60 X. Y. 326. 
 
 And in an action for malicious prosecution, the burden is upon the plaintiff to 
 prove want of probable cause for the prosecution, and although the evidence be 
 uncontradicted, yet, if the facts proved be capable of different inferences, it is 
 for the jury to determine what, under the circumstances, would be the belief and 
 action of men of ordinary prudence and a i-efusal to submit the case to the jury 
 is error. Heyen vs. Blair, 62 N. Y. 18 ; Hector vs. Glasgow, 79 Pa. 79 ; Knick- 
 •erbocker Ice Co. vs. Gould, 80 111. 388. 
 
 Whether there be fraud in fact is always for the jury, however plain a case it 
 may be, hj reason of the presence also, of fraud in law ; Ehi-ishman vs. Eoberts, 
 68 Pa. 309 ; Milm vs. Henry, 40 ib. 352, (distinguishing fraud in law from fraud 
 in factj and whether a contract is established by proof (3 Grant (Pa,) 241), as 
 ■well as what the terms of the contra(;t are ; but the question as to what the legal 
 ■effect of it is, is for the court and it is error to submit both of these questions to 
 Ihe jury. White vs. Murtlond, 71 111. 252. 
 
 The court will, however, see that there are proper bases of fact for inference 
 ;and will not allow presumptions to be based upon presumptions, Pennington vs. 
 'Tell, 11 Ark. 212 ; Eichmoud vs. Aikin, 25 Vt. 324; Tanner vs. Hughes, 53 Pa. 
 289; McAleer vs. McMurry, 59 Id. 126; and the party on whom the burden 
 rests is bound to prove each circumstance which is essential to the conclusion in 
 tie same manner as if the whole issue rested on it. Henderson vs. State, 14 
 
34 ONUS PROBANDI. 
 
 Tex. 503 ; Brandon vs. Cabiness, 10 Ala. 155 ; Spaulding vs. Harvey, 7 Ind. 
 429. 
 
 The rule that affirmative testimony is entitled to more weight than negative 
 has too many exceptions to be of much practical use, and many properly be with- 
 held from an instruction (Glenn vs. Farmers B'k of N. C, 68 Ga. 191 ; Smith vs- 
 Mcllvaine, Id 287) except to overcome equipoise. 
 
 The jury may undoubtedly in all cases give a general verdict, thus taking upom 
 themselves to judge of both the law and the fact, Mayor of Devizes vs. Clark, 3- 
 Ad. & E 506 — they may render a general or special verdict and the judge can- 
 not compel them to do either. Peck vs. Snyder, 13 Mich. 21„ even after they 
 have returned a special verdict, it is error to submit the cause again for a gen- 
 eral verdict with instructions Spaulding vs. Mayhall, 27 Mo. 377 ; the rule ob- 
 tains in criminal prosecutions, ('cm. vs, Cathams, 50 Pa, 181 ; Short vs. State, 
 7 Yerg. (Tenn.) 570 — and if requested by either party the court must direct the- 
 jury if they render a general verdict, to find specially upon particular questions 
 of fact, Mich R. E. Co. vs. Bivans. 13 Ind. 263 ; Bird vs. Lanius, 7 Ind. 615 ;: 
 Riffing vs. Felton, 12 Id. 259. The same rules apply to justices court in New- 
 Jersey. Springer vs. Reeves, 4 N. J. L, 207. 
 
 To constitute a special verdict certain facts should be found by the jury, with 
 a conclusion that if the court should be of the opinion, upon the whole matter- 
 found, that the plaintiff is entitled to recover, then they find for the plaintiff, but 
 if otherwise, then they find for the defendant. Mumford vs. Ward-well, 6 Wall, 
 423. 
 
 Each quesrion submitted to jury as a basis of a special verdict should relate 
 only to one fact (Phcenix <tc. Co. vs. Fletcher, 23 Cal. 418) and the finding 
 should be full, and find all conclusion of fact so as to leave nothing for furthei- 
 determination except questions of law (2 N. Y. 406) ; and to justify a court in 
 rendering a judgment upon a special finding of facts they must be inconsistent 
 with the gejieral verdict, and when taken together with the facts against a gen- 
 eral verdict, such finding of facts together with those admitted in the pleadings 
 must be sufficient to establish the right to recover. Lamb vs. First I'resb. So., 
 20 Iowa; Harden vs. Branner, 25 Iowa, 364; Horn vs. Eberhatt, 17 Ind. 118;. 
 Lees vs. Clark. 20 Cal. 367. 
 
 In criminal cases the jury are the judges of the law and the facts, and are not 
 bound by any charge that the judge may give, unless it truly states the law, of 
 which the jury have the right to judge, McPherson vs. State, 22 Gu. 478 ; Hoi- 
 den vs. State, 5 Ga. 441 ; McGuffie vs. State, 17 Id. 497 ; McCullough vs. State,. 
 10 Ind. 576 ; Forshee vs. Abrams, 2 Iowa 571 ; State vs. Saliba, 18 Ija. Ann. 35 ;; 
 People vs. Thayers, 1 Park Cr. 595 ; State vs Snow, 18 Me. 346 ; State vs.. 
 Jones, 5 Ala. 667 ; Armstrong vs. State, 4 Blackf. 247 ; Warren vs. State, Id.. 
 159; and it is error fo refuse to so instruct the jury when requested. Kane 
 
ONUS PROBANDI. 35 
 
 *12 parties; (1) but whose *dutj it is to explain to the jury the 
 nature of any one which may present itself in the course of a 
 
 vs. Com. May, 1879. Pa. ; State vs. Crotean, 28 Vt. 14 ; U. S. vs. Wilson, 
 Baldw. 99. 
 
 2. Moaning- simply presumptions of fact — '-natural presumptions" which are 
 inferences as to the existence of some fact drawn from the existence of some 
 other fact : — inferences which common sense draws from circumstances usually 
 occurring- in such cases. The Court will not weigh evidence even by consent 
 ■of parties. Prays vs. Burbank 11 N. H. 290, but it is error to submit a question 
 to the jury upon which there is no conflict of testimony, Dickerson vs. .Wason 
 48 Barb. 412. 
 
 These can only be made by a jury or by the court when acting as a jury. It is 
 the duty of the court to state to the jury the legal presumption and inform them 
 how far they must be govorned by it, provided they find certain facts — hypoth- 
 ■ecally stated. But it is a clear invasion of the provice of the jury for the court 
 to direct the jury when they shall niEvke or apply a mere presumption of fact Al- 
 linson vs. State, 42 Ind. 354; E. R. Co vs. Stout, 1*7 "Wall. 657 ; Garrolsou vs. 
 Pegg, 65 111. 195 ; Howard vs. Smith, 33 N. Y. Superior Ct. 124 ; McLean vs. 
 Clark, 47 Ga. 24; and it is said in State vs. Harkin, 7 Xev. 377. " a judge has 
 no more right to volunteer before the jury his opoinion upon a material fact in 
 controversy while deciding a question of law on the trial, than he has to charge 
 a jury in respect to such fact. If he expresses an opinion it is a wrong requiring 
 redress as imperatively in a case of mere inadvertence as in a case of wilful eva- 
 sion of law," Cilleman vs. Ball, 49 Mo. 249 ; Johnson vs. Johnson, 71 X. 0. 402; 
 Roper vs. Stone, Cooke (Tenn.) 499 ; Gorden vs. Tuber, 5 Vt. 103 ; Burt vs. Ge- 
 vinn, 4 Har. & J. 507. It is equally illegal for the court to single out certain 
 testimony — and tell the jury that it is entitled to great or . little weight, State 
 Huudly, 46 Mo. 414 ; Jenkins vs. Tobin, 31 Ark. 306 ; Frame vs. Badger, 76 
 111. 441 ; Evans vs. George, 80 Ilk 51 ; Ketchem vs. Ebert, 33 Wis. 611 ; McCir. 
 cle vs. Simpson, 42 Ind. 453 ; but they should employ apt means to inform the 
 jury what facts in the case are in law evidential and distinguish them from such 
 as are not, City B'k of Macon vs. Kent, 57 Ga. 283 ; Smith & Bennet vs. State, 
 12 Vr. 371 ; without intimating their mental convictions in respect to the exist- 
 ence, non-existence, or application of such facts, and- they should not carry on a 
 process of general reasoning as to the evidence. Hays vs. State, 58 Ga. 36 ; 
 State vs. Daucy, 78 N. C. 437. 
 
 But singularly enough the inherited English doctrine, " He may, if he thinks 
 necessary, tell the jury the impression the evidence has left upon his mind," Chit. 
 Arch Pr. Q. B. 384 ; Davidson vs. Stanley, 3 Sc. N. S., still obtains, and ever 
 and anon reaffirmed, Bodings Exr. vs. Eoyal, Pa. Feb. 10 1879, 8 Reptr. 27 ; (see 
 
36 ONUS PROBANDI. 
 
 trial, (1) and informing the jury of its recoginition by the law., 
 as a ground on which decisions may legitimately become to, di- 
 
 caveat of Dalrimple, J., lest the old doctrine should be impinged, Smith and 
 Bennett vs. State, 12 Vr. 385,) in some of the older States. In Balkely vs. Ke- 
 tellas, 4 Sand, N. Y., 459, the doctrine of these courts is well expressed. " It is 
 the undoubted right of the judge to comment upon the evidence, and the exer- 
 cise of it is not the subject of exceptions ; but, il the court see that the charge - 
 of the jndge upon the evidence has caused injustice it may interfere, as it would 
 with a verdict of a jury against evidence. How can the appellate court see that 
 the comment on the evidence caused injustice ? Perhaps the jury entirely ig- 
 nored the disquisition of the judge upon the facts They certainly have the 
 right to ; and they may or may not adopt the theorizing of the parties or their 
 counsels. Then the opinion of the judge to legally effect the verdict, must be 
 regarded in the light of testimony, as if an expert learned in ratiocination had 
 testified, that the testimony of A, B and C amounted to proof of agency, part- 
 nership, adverse possession, intent, &c., — an absurdity so transparent that a ver- 
 diet would be deemed affected by it in law whether it was in fact or not, and can 
 a court know any more about a verdict than to see that no illegal elements en- • 
 tered into it ? 
 
 The following propositions of the courts of each of these schools will show the 
 contrast. "It cannot often be proper for a judge to tell the jury that they are 
 not at liberty to believe the witness," Conrad vs. "Williams, 6 Hill 444 ; " where 
 the evidence is conflicting and very evenly balanced, an instruction that the re- 
 membrance of occurrences nearly a year back " is not always to be expected of a 
 witness," held to be error as bolstering his testimony," Shaw vs. People, 81 111. 
 151. In opinions, impressions, &c., there is sometimes an element of Humane 
 nature, and when they " militate against an obnoxious party, the judge declares 
 that he is bound to administer the law as he finds it ; — that it is not for him to • 
 overturn the decisions of his predecessors, or set in judgment upon the wisdom, 
 of the legislature ; — and to blame him for this is impossible. But when the party 
 against whom the rule presses is a favored one — the judge discovers that laws 
 were made for the benefit of men, not their ruin — that technical objections ar- 
 gue an unworthy cause ; and that the first dpty of every tribunal is to administer 
 substantial justice at any price. And by thus shifting the urn from which the 
 principle of his decision is taken, the judge sits like the fabled Jove, the abso- 
 lute arbiter of almost every case that comes before him. 
 
 " Two urns by Jove's high throne have ever stood 
 The source of evil one, and one ot good ; 
 From thence the cup of mortal man he fills, 
 Blessings to these, to those distribute ills.'" 
 Best Ev. 103. 
 
 1. Questions of competency and relevancy or pertenency are among the live 
 
 questions with which the court have to deal. The pleadings must be examined 
 
ONUS PROBANDI. 37 
 
 and the testimoiij- will bo limited to the- point in controversy, Clark vs. Vorce li> 
 Wend. 232, Scholey vs. Mumford 64 N. Y. 521, Hayes vs. Ball 72 Id. 418, the 
 court will not generally hear evcidence of admitted facts, Eidgway vs. Longaker 
 18 Pa. 215, nor can admissions in the pleadings be contradicted on the trial 
 Bobbins vs. Codman 4 E. D Sme. 315 ; — so if a fact in a party's favor bo clearly 
 implied by law (presumption) no evidence should be allowed to prove it Dear- 
 mond vs. Dearmond 12 Ind. 455 ; and where distinct propositions must be cstalv 
 lished ; — it is not error to permit the party to present his evidence to support, 
 them in whatever, order he may elect Cook vs. Robinson 42 Iowa 474. 
 
 "Where evidence is offered of a fact which must have been preceeded by an- 
 other fact, without which it is unavailing to a party, it is only admitted on the- 
 assurance that such other proof will be made, Lombard vs Chiever 8 111. 469, and 
 it will not then be received, out of its natural order and setjuence if equal assur- 
 ance come from the other side that such antecedent facts do not exist, Davis vy.. 
 Calvert 5 Gill A- J. 269. 
 
 The testimony must always be admissible at the very time of its offer. Hervcy 
 vs. Kerr 8 Bos. 194, and the court at the request of the other side will in case of 
 any doubt of the legality of the testimony about to be offered require counsel 
 to state the substance of the evidence expected to be given by a witness, or so 
 much as discloses a clear tendency to prove his point, Defiance vs Hazen 1 
 Chand, (Wis.) 125, and if counsel declines, exclude the witness Eoy vs. Targee 7 
 "\A"end, 359 ; and if it be found legally insufficient for the purpose for which it is 
 offered it will be rejected, Baltimore &c., Co., vs. Dobbins, 23 Md, 210, McTa- 
 vish vs. Carroll 13 Id. 429, Green vs. Caulk 16 Id. 566, O'brien vs. Hilburn 22 
 Tex. 616. But when the party is not required by the other side to state the pur- 
 pose for which he offers the evidence, it is admissable if competent for any pur- 
 pose. King vs. Faber 51 Pa. 387 ; and the party offering evidence is understood 
 to wave any objections to its competency as proof, "Greenlief vs. Birth 5 Pet. 132 
 "Wheeler vs. Hill, 16 Mis. 329, — and a contrary finding will be reversed, Pordhani 
 vs. Smith, 46 X. Y. 683. A presumption of injury to authorize a reversal ob- 
 tains whenever illegal evidence be admitted over objections which are specific, 
 whether it be incompetent, Hawley vs. Hatter. 9 Hun. 134, Braguo vs. Lord 67 
 N. Y. 495,— or irrelvant, Havemyer vs. Havemyer 11 J. & Spr. 506 ; so there is- 
 a presumption in favor of the competency and credibility of a witness, and the 
 burden of making out incompetency and incredibility is with the party objecting- 
 Marshden vs. Standfield 7 B. & Cress, 815, Watts vs. Garrett, 3 Gill & J. 355, 
 Johnson vs. Kendall, 20 N. H. 304, Duel vs. Fssher 4 Deuio 5L5, and on princi- 
 ple the objector should have the open and reply. But a different rule obtains 
 as to relevency. The party off'ering testimony has the burden of showing its 
 tendency to prove the allegations put in issue. The burden of proof includes 
 the burden of showing the probative tendency of the facts off'ered to support an 
 
go ONUS PKOBANDI. 
 
 affiiniative, Weidlav vs. The Farm B'k, of Lans, 11 Serg & E. 134, — 140, Har- 
 wood vs. Ramsey, 15 Id. 31, Vanburen vs. Wells, 19 "Wend, 204, The town Man. 
 Co. vs. Foster, 51 Barb 351, Jackson vs. Smith, 7 Cow 111. In the Phil, i 
 Trent. R. R. Co. vs. Shipson, 14 Pet. 460, Story J. says " It is incumbent upon 
 those who insist upon the right to put particular questions to a witness, to estab- 
 lish that right beyond a reasonable doubt, /oj" the very purpose stated hy them ; 
 and they are not afterwards at liberty to desert that purpose, and to show the 
 ipertenancy or relevancy of the evidence for any other purpose, not then suggested 
 to the court." In the discussion of the relevancy of an offer of testimony, the 
 «onrt will first decide whefher it be prima facie relevant Wicks vs Smith, 18 
 Kans. 508, Innormarity vs. Bryne, 8 Port. (Ala) 176 U. S. vs. Gilbert, 2 Sumn. 
 19, A'anburen, vs. Wells supra and indicate whom they will hear opon, — the pro- 
 poser or objector : but it is submitted that upon principle the proposer should 
 liave the reply before objections to his testimony be sustained, as the primary, 
 and ultimate burden is on him of showing the relation of the proof to the alle- 
 gation, Orenshrw vs. Davenport, 6 Ala. 390, Tnzzle vs. Barkley, Id, 406, Black- 
 burn vs. Beal, 21 Md. 208, State vs. Belausky. 3 Minn. 246, Fuller vs. Clark, 3 
 E. D. Sura. 302. 
 
 The grounds of objection to an offer of testimon, if required, must b? stated 
 and the party objecting will be held to such ground, Williken vs. Barr, 7 Pa 
 23, Gilbert vs. Kennedy, 22 Mich. 117, — the objection is to be determined inde- 
 pendent of the answe.T to it, Broner vs. Forauentheal, 37 N. Y. 166, 9 Bos. 350 
 and the court will not separate legal from illegal evidence on a general objection. 
 I)ut may without error exclude the whole. Tooley vs. Bacon, 70 X. Y. 34. 
 
 But it is now held that improper evidence must be excluded in criminal cases 
 whether objected to or not. State vs. O'Conner, 65 Mo. 374, and the languao-e ol 
 the court in State vs. Sooy, 12 Vr. 401 is, " The examiner was bound to so frame 
 Sis interrogations as to exclude the probability of irrelevant testimony." 
 
 It sometimes requires consumate skill and patience to discover the precise 
 boundary between relevant and irrelevant testimony. An exact knowledge of 
 the legal import of the allegations to be proved and the quantity and quality of 
 testimony required by the law to support them is the first prerequisite, and this 
 will involve a knowledge of the least, i. e., the smallest compass of facts which 
 ■will support the allegation or allegations to be made out. This measure of testi 
 mony is the foundation principle of the investigation. This forms, or must be 
 assumed to form, an axionialic basis by law. Every sufficient remediable allega- 
 tion requires a definite measure of fact to support it in law, and any measure be- 
 low the mimmum, will be deamed a total failure of proof. Johnson vs. Moss 45 
 Cal. 515 ; O'Brien vs. St. Paul, 18 Minn. 176, Packard vs. Snell, 35 Iowa, 80 ; 
 Walter vs. Bennett, 16 N. Y. 250, Ross vs. Mather, 50 N. Y. 1. Relevancy is 
 eonversant alone with the legal relation of an offer of particular testimony to the 
 
ONUS PROBANDI. 
 
 39 
 
 rect or advise them to fiud accordin,^ly (4). Now, sometimes 
 the law gives to a mere natural presumption an artificial degree 
 of weight which it would not otherwise have had, but still leaves 
 to the jiir^^ to make the presumption to the extent recognized; 
 while at others it goes a step further, and on the very aspect of 
 the pleadings raises a presumption without the intervention of a 
 
 There is this neces- 
 sary relation when 
 the fact offered. 
 
 the facts of tlie the- 
 ory. 
 
 allegation to be proved or negatived. AVhen an offer is made.it must be assumed 
 to be made pui-suant to a theory of the proof of the case or defence. But what 
 is a theory ? A supposition which reconciles all the facts necessary in law to 
 support the case or defence in hand. Assuming the theory to comprehend suffi- 
 cient facts, we can approach the ultimate question as a test; does the fact offered 
 bear any necessary relation in law to the theory of the offer ? 
 
 f (1) is part or shows the absence 
 of part of, 
 
 (2) is a cause of or shows the ab- 
 sence of a cause of, 
 
 (3) is an effect or shows the ab- 
 sence of an effect of, 
 
 i' (4) an effect of a cause or shows 
 an absence of an effect of a 
 cause of, |l 
 
 :")) is a legal accompaniment or | 
 shows an absence of such ac- | 
 companiment of, ] 
 
 4. The usual course in the older .States and in England is, for the judge, after 
 the cause has been summed up upon on both sides by counsel, to proceed to charge 
 the jury ; explaining to them the nature of the action and of the defence, and 
 the points in issue between the parties ; recapitulating the evidence which has 
 been produced on both sides, remarking upon it when necessary, and directing 
 the jury on all points of law arising on the evidence. 1 Bur. Pr. 23."i. This 
 method of declaring the law after argument of counsel is attended with almost 
 an insuperable embarrassment in cases where the judge's views of the law are 
 sought to be reviewed. A general exception to the oral charge does not bring 
 up any particular remark of the judge, or any omission in the charge, Magovei- 
 ing vs. Staples, 7 Lans. 145, Cam. & Amb. K. R! vs. Belknap 21 Wend. .'J.34, 
 Hunt vs. Maybee, 7 N. Y. 2.56. This necessitates an interruption of the judge 
 during the charge or a request after the charge, — that the charge be changed in a 
 specific particular or that other elements of the case should be charged upon. Arc. 
 not unfrequently provoking a discussion of law, signing exceptions, A-c, — pro- 
 ducing disorder and confusion in the proceedings, — depriving counsel of the 
 benefit of the settled law before their argument. If, during the progress of the 
 trial, the court and counsel have not come to a complete agreement as to the hu\' 
 of the case in all its phases it is almost a necessity to fairness, propriety and or- 
 
(ler, that counsel on eithei- side prepare in writing clearly expressed instructions 
 upon specified points, and submit them before the argument, after the testimony- 
 is all in, to the court for . affirmance or rejection. Instructions given in a civil 
 case are not permitted to be controverted in the argument ; and the remedy is on 
 exceptions to the instructions. Delaplane vs. Crenshaw, 15 Gratt. 457. The 
 court will settle the law of a case, on application of counsel, before it is argned, 
 Barney vs. Demils Wright (O.) 44, Zabriskie vs. Smith, 13 N. Y. 338, — in open 
 court, O'Connor vs. (juthrie, 11 Iowa 80, — in the hearing of opposing counsel, 
 Tinkham vs. Thomas, 2 J. & Spr. 238, and if objected to exceptions must be 
 taken at the time they are given, Rowlens vs. Tucker, 3 Iowa 213, Gower vs. 
 Dill, Id. 338, Gallon vs. Walkins, 6 Wis. 629, Kennedy vs. Cunningham, 2 Mete 
 (Ky.) 538, Gorden vs. Gorden, 13 Mo. 215, Borah vs. Martin, 2 Chand. (Wis.) 
 56, — before the judge has charged the jury. Smith vs. Keen, 26 Me, — and before 
 the jury retire, Montgomery vs. Gilmer, 33 Ala. 117, or it will be at the discre. 
 tion of the court whether they will call back the jury for instructions. St. Johns 
 vs. Kidd, 26 Cal. 263, Tinkham vs. Thomas, supra. 
 
 Objections, — the foundation for exceptions to instructions relate first to a re- 
 fusal to give a correct charge upon a point raised by the pleading and distinctly 
 supported by the evidence, Comstock vs. Dodge, 43 How. Pr. 99, and second, the 
 giving an erroneous charge. First, if the instruction be correct, it should be 
 given substantially as requested. Pay vs. O'Neil, 36 N. Y. 11, Bell vs. Troy, 3.^ 
 Ala. 181, Bland vs. People, 4 111. 264, Davis vs. Perley, 30 Cal. 630, Tober vs 
 Hutson, 5 Ind. 322, Denkers vs. Temple, 41 Pa. 234, Sy. Ins. Co. vs. Schriffler,' 
 42 Id. 188, — the court must see that it be fully and fairly addressed to the jury» 
 and is error to say, " such is the law," in responding to such request, Davis vs. 
 Stale, 14 Ga. 101, Hays vs. Paul, 51 Pa. 134, State vs. Wilson, 3 111. 225, Pena. 
 R. B. Co. vs. Zebe, 33 Pa. 318, — on the exact law, not on its history, object, or 
 purpose, liincoln vs. Wright, 23 Pa. 76, or other remarks calculated to mislead 
 the jury, Biehler vs. Coonce, 9 Mo. 347, Powers vs. M. C. Perron, 2 Serg. & R. 
 44, Smith vs. Thompson. Id. 48, but have the law correctly stated on the facts as 
 he claims them to have been proved, where testimony has been given tending to 
 sustain his view of the case, if it be legally sufficient to allow the case to go to 
 the jury, Whitney vs. Synde, 16 Vt. 679, Gilkoy vs. Peeler, 22 Tex. 663, Eidens 
 vs. Ridens, 29 Mo. 470, Smith vs. Johnson, 13 Ind. 224, Hopkins vs. Richardson, 
 9 Gratt. 485, Anderson vs. Bath, 42 Me., and the party being bound by the in- 
 structions he asks, i. e., the theory of the case he presents, Clift vs. Stockton, 4 
 Litt. (Ky) 414, Alston vs. Grantham, 26 Ga. 374, Pry vs. Hinkley, 18 Me. 
 320, Plowers vs Helm, 29 Mo. 324, and this completely assumed the correctness 
 of the pleadings. Guy vs. Tams, 6 Gill. 82. 
 
 The court is not bound to charge on particular points unless requested at the 
 trial, Rozar vs. Burns, 13 Ga. 34, liatsh vs. Spravin, 11 Me. 354, Hall vs. Weir, 
 
ONUS PROBAND!. 41 
 
 1 Allen 261, Moore vs. Ross, 11 N. H. 547, Bunitide vs. Grand, '!'. R. R. Co., 47 
 Id. .t;i4. Davis vs, Elliott, 15 Gray 90, Parsons vs. Brown, 15 Barb. 590, — a neg- 
 lect of the court to respond when so requested is a refusal, Bartle vs. .Saunders, 2 
 Grant Pa 199, Shaeffer vs. Landis, 1 Serg-. & R. 449, and the request must be 
 preferred before argument or the privilege is waived. Fennan vs. Blood, 2 Kaiis. 
 496. Vaughn vs. Porter, 16 Yt. 26G, Cady vs. Owen, 33 Vt. 598, Harrison vs. 
 Young, 9 Ga. 359. 
 
 Second — the giving- of erroneous charges. There should be no instruction upon 
 a point upon which there is no evidence. Miles vs. Douglass, 34 Conn. 393, Hill 
 vs. Candfield, 56 Pa. 454, Phi). & C. R. R. Co. vs. Harper, 29 Md. 330, Harvey 
 vs. Skepworlh, 6 Gratt. 393. Hite vs. Blanford, 45 111. 9, but they should be af- 
 firmatively authorized by the evidence, Doonan vs. Mitchell, 26 (ia. 472, State 
 vs Ross. 29 Mo. 32, Eli vs. Tallman, 14 Wis. 23, Sterns vs. James, 14 Allen 582, 
 Hope vs. liawrence, 50 Barb. 258, — and however true as an abstract principle, — 
 if it have no application to the case it must be refused, 44 N. H. 452, Hufman 
 vs. Ackley. 34 Mo. 217, Oliver vs, Depew, 14 Iowa 490, Dwier vs. Dunbar, 5 
 Wall. 318, Allen vs. Wannamaker, 31 N. J. L. 370, Laber vs. Cooper, 7 Wall. 
 566, Camp vs. Helan, 43 Mo. 591, Diversy vs. Kellogg, 44 111. 114, Bower vs. 
 Earl, 18 Mich. 367, — and if the instruction be in such form that the court may 
 not charge in its very terms without qualifications, it is said the court is not 
 bound to separate a proposition of this kind and pick out which is good and re- 
 fuse the rest. Bevan vs. Haydon, 13 low. 122, Keller vs. N. Y- Cent. R. R., 24 
 How. Pr. 172, Tifield vs. Adams, 32 Iowa487, Bagley vs. Smith, 10 N. Y. 489,— 
 as if two propositions be submitted, one of which is erroneous, it will be by some 
 courts wholly rejected. Preston vs. Leigh ton, 6 Md., Birney vs. N. Y. &C. Co., 
 18 Md. 341, Smith vs. Richmond, 18 Cal. 496. 
 
 Instruction must not assume the existence of facts upon which it is based, 
 Robinson vs. Chaplin, 6 Iowa 91, Adams vs. Thurman, 5 Dana 393, Peterson vs. 
 Elliott, 9 Md. 52. Shelton vs. Hamilton, 23 Miss. 496, Rushin vs. Shields, II Ga. 
 636, Conway vs. Shelton, 3 Ind. 344. 
 
 Instructions which assume to pass upon the weight of evidence are erroneous, 
 Xauper vs. Young, 12 Iowa 450 ; Boyd vs. Mclver, 11 Ala. 822 ; Bufiington vs. 
 Cook, 35 Ala. 312 ; Buttersby vs. Abbott. 9 Cal. 565 ; Stacy vs. Cobb, 36 Ills. 
 349 ; Schemer vs. Lamp, 17 Mo. 142 ; Clap vs. Braneagham, 9 Cow 530 ; Kim- 
 bro vs. Hamilton, 28 Tex. 560; Marriner vs. Pettebone, 14 Wis. 195. The 
 weight and probative effect is exclusively for the jury, Zerger vs. Sailer, 6 Binn, 
 24; Brown vs. Campbell, 1 Serg. & R. 176 ; Holems vs. Watson, 28 Pa. 457, 
 Billis vs. Phillips, 4 Dutch, L25 ; Choteau vs. Steamboat Co., St Anthony 12 
 Mo. 489 ; but the court must tell the jury what will be the legal effect of the 
 establishment of a disreputed fact. State vs. Anderson, 4 Nev. 265; Clark vs. 
 Tuber 28 Vt. 222 ; the effect of written evidence Brunett vs. Hallis, 9 Tex. 
 
42 ONUS PROBANDI. 
 
 437, and unless testimony be objected to at the trial, the court may properly re- 
 fuse to exclude it from the jury by an instruction at the close of the case, Dreb- 
 man vs. Stifel, 41 Mo. 184 ; Cook vs. Brown, 39 Me. 443 ; Davis vs. Strolen, 17 
 Iowa 521. 
 
 Special charges to a jury, which are included in a general charge previously 
 given, should be refused Gentry vs. Berges, 8 Blackf. 261 ; Thompson vs. Grimes 
 5 Ind. 385 ; Nelson vs. Hardy, 7 Ind. 364 ; Jones vs. Prescoe, 24 Mo. 498 ; Price 
 vs. Alexander, 2 Greene 427 ; Mills vs. Mahon, 9 Iowa 448 ; Moye vs. Herndon, 
 30 Miss. 110; Lyuch vs. Welsh, 3 Pa. 294; Groft vs. Weakland, 34 Id. 304 ; 
 Arbuckle vs. Thompson, 37 Id. 170 ; Duffel vs Noble, 14 Tex. 610, and where a 
 -charge to a jury is legal in itself, it will not be ground for reversing the judgment 
 that it was not sufficiently full, or was calculated to mislead the jury ; but addi- 
 tional or explanatory charges should be asked for, Casky vs. Haveland, 13 A.la. 
 .315 ; Dave vs. State, 22 Id. 23 ; Warner vs. Dunavan, 23 111. 380 ; Kent vs. Ty- 
 son, 20 N. H. 121 ; Stroud vs. Brith, 11 Barb. 300 ; Hayward vs. Ornsby, 11 
 Wis. 3, — want of directness in a judge's charge must be met by a special request 
 for specific instructions by the dissatisfied party, McCausland vs. Cresap, 3 Iowa 
 161 ; Castle vs. Bullard, 23 How 172 ; Kenan vs. Holloway, 16 Ala. 53 ; Bast 
 vs. Alferd, 20 Tex. 22G ; Brunell vs. Eumyon, 4 Dana. 422, and if one party 
 procures an erroneous instruction to be given, and, at the instance of the oppo- 
 site party, another is given qualifying the former, the instructions should be con- 
 sidered together ; and if when so considered the law is correctly laid down, the 
 ■error in the first is cured. Vanbuskirk vs. Day, 32 111. 260, contra ; Denman vs. 
 Bloomer, 11 111. 177 ; Sones vs. Talbot, 4 Mo. 219. 
 
 Instructions should generally present the actual controversy without referring 
 the jury to the pleadings, Dassler vs. Wilsey, 32 Mo., 498, — whether there be an 
 issue at all or not Bradshaw vs. Mayfield, 24 Tex, 494 ; Burgess vs. Lloyd, 7 Md., 
 177, — all admitted and uncontroverted facts, Hedgpith vs. Robinson, 18 Tex. 858 ; 
 wheu the testimony does not tend to make to make out a case, Graff vs. Potts &c., 
 E. R. C'o. 31, Pa. 489, and when there is no testimony to sustain the issue Hynds 
 vs. Hays, 25 Ind. 31 ; Lade vs. Old, Col. R. R. Co., 14 Gray 143 ; Grand Trunk 
 R. R. Co., vs. Nichols, 18 Mich. 170. They should separate the law and the fact 
 Rogers vs. Broadux, 24 Tex. 538 ; and not leave a question of law to the jury ; 
 Gober vs. Hageman, 26 111. 438 ; Butler vs. Thompson, 11 B. Moii. 237 ; Hickey 
 vs. Ryan, 15 Mo. 62 ; Work vs. McClay, 2 Serg. & R. 416,— nor declare a pre- 
 .smnption of fact to bo one of law ; Newton vs. Jackson, 23 Ala. 335 ; they must 
 .state legal presumption— not inferences of fact ; Winrich vs. Heffner, 38 Pa. 297 ; 
 White vs. Hass, 32 Ala. 430 ; and they must not take from the jury any inferences 
 cf fact ; Buries vs. State, 4 Md. 273 ; Abell vs. Harris, 11 Gill & J. 367 ; Petten- 
 ^■ill vs. Porter, 8 Allen 1 ; Trendell vs. Wells, 4 Cal. 260 ; Fredericks vs. Gaston, 
 1 Greene, (Iowa) 401, but the court will instruct as to a presumption of law on a 
 
ONUS PROBANDI. 43 
 
 jury at all. These latter are called presnm]}tion>< of lair ; the 
 former, presumptions of mixed law and fact. (5) 
 
 ;"). Presumptions not established by law and left to the jury must be weighty, pre- 
 cise and consistent. The known fact on which the presumption reposes must draw 
 with it the unknown fact as almost necessary consequence. The presumption must 
 be precise — not susceptable of application to other circumstances than those 
 sought to be established ; Beach vs. Cohn, 3 La. Ann 103 ; Hamilton vs. People, 
 29 Mich. 193 ; and the party upon whom the burden rests is bound to prove each 
 circumstance which is essential to the conclusion, in the same manner as if the 
 whole issue rested on it ; Henderson vs. State, 14 Tex. 503 ; Braden vs. Carbi- 
 ness, 10 Ala. 15.5 ; Spaulding vs. Harvey, 7 Ind. 429 ; State vs. Patterson, 4.> 
 Vt. 30S. 
 
 material point in the absence of proof although the opposite party has already 
 overthrown the presumption by proof; Potter vs. Chadsey, Ki Abb. Pr. 146 ; and 
 yet when there is no opposing evidence it is the duty of the court to direct the- 
 jury for whom a verdict shall be found, Haynes vs. Thomas, 7 Ind. 38 ; Todd vs. 
 Whitney, 27 Me. 480 ; Bond vs. Mallow, 17 Tex. 636 ; Lindsay vs. Lindsay, 11 
 Vt. 621. 
 
 In case of equal division of the bench it is their duty to charge upon the point 
 one way or the other, — or suspend the trial till another time for such cause ; 
 Boardman vs. Keeler, 1 Aik. Vt. 158, and not submit the question of law to the 
 jury ; Hall vs. Adams, Id. 166. 
 
 The form of instructions should be hypothetical as to the facts, i. e. thnt if th(- 
 jnry find from the testimony that, &(:., [rrcifing the substantive facts,) and be 
 direct and positive as to the law, i. e. that in the event of finding so and so they 
 find for the plaintiff or defendant, as the case may be. In LeEoy vs. The Park 
 Fire Ins. Co. 39 N. Y 57 ; Hunt, C. J., says : " The defendants asked the court 
 to charge, that, as there was no water in the flumes or trunk at the time of the 
 fire, and had not been for five months, so that none could be thrown over the- 
 building on the wheels, the conditions of the survey and the policy in respect to 
 that fact were violated by the plaintiffs, and they should not recover. If the de- 
 fendants had requested the law to be thus e.\i&Y^&A.—if the jury should he <f the 
 opinion that the survei/ had been delivered by the plaintiffs as ft valid instru- 
 ment,— and if they shoiddfind the fact in respect to the absevci- of water, to 
 be as claimed by the defendants, a fair question would have been presented.'" 
 There are two criticisms on this charge, which may be important to notice 1st, 
 "if the juni should be of the opiiuon." The language should be if the jury find! 
 from the testimony that the survey (assuming that there was no controversy about 
 this paper) had been delivered by the plaintiffs to be acted upon, &c., as a valid', 
 instrument ; 2d, '-to be as claimed by the defendants." The substantive fact."-; 
 
44 ONUS PROBANDl. 
 
 '1 13. Now, as the present treatise is priacipally designed to 
 'illustrate the practice relative to the respective rights of the con- 
 tending parties to begin to give evidence to the jury, which is 
 only affected, as shall be shown in the next chapter, by the onus 
 probandi as it appears on the record, (1) and is therefore a matter 
 entirely for the decision of the judges; it follows that, any 
 further consideration here of presumptions oi fact, whether sim- 
 ple or mixed, would be altogether misplaced, as they cannot be 
 made without the intervention of a jury, and consequently do 
 not affect the right to begin. We will therefore, confine our- 
 
 1. The parties will be bound by the case as they have made it by the 
 pleadings, Rawlins vs. Danvii-s, 5 Esp. 38 ; and the court has to decide upon the 
 burden and relevancy of testimony. In Seymour vs. Hubert, Pa., May 3. 1880, 10 
 Eept'r 182 ; Mercur ,T. said " It may be conceded as a general rule, that in case 
 of a scire for/as to revive a judgment, no defence can be made, except matters 
 arising subsequent to the judgment. The merits of the original judgment cannot 
 be inquired into so as to admit of a defence which might have been set up in the 
 original suit, Cardosa vs Hernies, 5 S. A: K. 65 ; Davidson vs. Thornton, 7 Bar'". 
 128 ; Ry. co. vs. Marshall, 4 Korris 187. If the objection bs to the validity of 
 the former judgment, the proper mode is to apply to Ijave it opened. The origi- 
 nal judgment in this case was entered as u judgment note. It is claimed that 
 when this note was executed, both the makers thereof were married women, and 
 the judgment thereon void. Instead of an application to open the original judg- 
 ment, the coverture of each of the makers was severally pleaded and denied in 
 the replication. The defendant in error did not demur to the plea, nor move to 
 strike it off, — but accepted the is^sue tendered. The question of coverture was 
 thus made one of the issues to be tried. It is substantially the same as 
 if it had been framed in the original judgment. The defendant in error thereby 
 waived her right to exclude the evidence of coverture; Under the pleadings it 
 was admissable and if found to exist at the exe<;ution of the note, that issue 
 should have been found in favor of the plaintiff's in error," Thompson vs. Bark- 
 ley, 3 Cas. 263. 
 
 as claimed by the defendant should have been inserted instead of the indefinite- 
 ness of "as claimed hy the ilrfi'iiilnnt." This is an artistic job in many cases, 
 and will tax the brain of counsel frequently. To set them out in the language of, 
 the pleadings under the code will usually suffice, — but under common law aver- 
 ments, — which are more or less general, it seems necessary to descend to greater 
 particularity, — say to substantive facts. 
 
ONUS PROBANDI. 45 
 
 selves to presumptions of laa\ and commence by observing, that 
 these are subject to a twofold subdivision. Some are made by 
 law, with such a degree of strictness, that it will admit of no 
 proof or evidence to the contrary (2) ; and which, for this reason, 
 partake, to a certain extent, of the nature of iixed rules of law, 
 2. Dr. Wharton iu his Ev. ? 123-4, says " The assignment of irrebuttability to 
 presumptions, however, is as repugnant to the practical jurisprudence of business 
 life, as it is to the philosophical jurisprudence of Eome. Practical jurisprudence 
 soon discovers that a presumption that is irrebuttable in the age of ignorance is 
 rebuttable in an age of civilization, Mills Log. 1, 389. That a man cannot be. 
 in the same weelv, in Rome and in London, was an irrebuttable presumption in 
 the twelfth century ; it is no presumption at all in the nineteenth. That infor- 
 mation cannot be passed instantaneously from one business center to another, 
 ■was in the twelfth century, irrebuttably presumed ; in the nineteenth century 
 most of our business contracts are affected liy information so received, Bests Ev. 
 ? 307. The consequence is that our courts, even while holding to the old phrase- 
 ology, are so far contracting tlie range of presumptioncs juris et ih: jure. 
 that while the class is still said to exist, -no perfect individuals of the class can be 
 found. The unimpeachability ol records is one of the last survivors of these 
 presumptions, and the unimpeachability of records is still spoken of as a pre- 
 &VLm\>tion juris et dejure; but whatever may be the name given to this pre- 
 ■sumption, it vanishes where it is confronted by proof of fraud or oppression.' 
 f X parte Lange 18 Wall 163. 9 Id. 3.")(1. All allegations ol fact are open to jury 
 inquiry, unless they are concluded by the law of estoppels or actual waver ; as 
 that a right of way precludes the idea that the party who has the right cannot 
 repair or keep the way in order, Mc^lillan vs. Cronin, 75 N. Y. 477, — that the 
 failure to object to testimony for the purpose for which it is offered precludes 
 the party from subsequently resisting its use for that purpose, Miles vs. Loomis. 
 7.T N. Y. 389, and if objections be made, all reasons for excluding the testimony 
 -will be deemed waived except those pointed out in the objection, Williken vs. Barr, 
 7 Pa., 23, Gilbert vs. Kennedy, 22 Mich. 117,— that the statute of limitations 
 runs from the date of a note payable on demand. Do Levellette vs. Wendt, 74 N. 
 Y. 579, — and that if a creditor have two demands against his debtor, he may 
 ■elect to which of two demands he will apply a payment which is not specifically 
 appropriated by the debtor, though one be secured and the other not, Harding vs. 
 Tifft, 7.5 N. Y. 461. So a proposition assumed or decided by the court to be 
 true, and which must be assumed or decided in order to establish another propo. 
 •sition which expresses the conclusion of the court, is as effectually passed upon 
 and settled in that court as the very matter directly decided, School Trustees vs. 
 Stocker 13 Vr. 117. 
 
46 ONUS PROBANDI. 
 
 (a). Thus it is presumed, that an infant under the age of four- 
 teen, cannot be guilty, as principal in the first degree, to a rape 
 *14 (3) (I}), or under seven, be guilty of any felony* whatever (c) 
 that if parties conspire to depose and imprison the king, they 
 have thereby contemplated his death {d), that every subject is ac- 
 quainted with the common and general statue law, so as to make 
 him amenable for their violation (4) (e) ; that a deed or l)ond 
 was made on good consideration (/) ; that if a party gives a i-e- 
 ceipt (5) under his hand and seal that he has received the money 
 (g). These are called irrebuttable presumptions of law, presmnp- 
 tiones juris et dejure, a term borrowed from the civilians (A); and 
 as they are not very numerous, and shut out all evidence on the 
 subject-matter of the issue, we need say no more about them. 
 
 (a) S Stark. Ev. tit. Presump, ; •> Ev, (d) lil. 109. 
 
 Poth. 334. (e) 1 Phil, Ev. 363. 
 
 (6) 1 H. P. C. 630 ; Rex vs. Gioombiidge, (/) 3 Start. Ev. 1211. 
 
 7 C. & P. 682. (J,) 1 Phil. Ev. 147. 
 
 (c) 1 H. P.O. 27. (7i) Hub. Proel. J. C. lib. 22 tit. 3. 
 
 3. This presumption it seems may now be overcome by clear proof of matu- 
 rity Peop. vs. Rudolph, 2 Park Or. 164, contra Com. vs. Green, 2 Pick, 380 ;. 
 wherein it is held that there may be a conviction of an assault with intent to 
 commit a rape. But the carnal knowledge of a child under ten is rape, because- 
 force and want of consent is conclusively presumed, Peop. vs. McDonald, 9 Mich. 
 150. 
 
 4. The presumption that all persons know the law must be confined to pre- 
 suming that all persons know the law exists, — but not that they are presumed to- 
 know how the courts will construe it, and whether, if it be a statute, it will or 
 will not be held to be constitutional. Brent vs. State, 43 Ala. 297. 
 
 But the law imputes absolute knowledge of the laws and rules under which 
 parties are claiming and acting. — as members of a stock exchange, Stewart vs. 
 Canty, 8 M. & W. 160 ; Mitchell vs. Newell, 15 Id. 389 ; ~ members of a 
 club, Raggett, vs. Musgrave, 2 C. & P. 556,— that a lessee knew the title he ac- 
 cepted, Butler vs. Potarhington, 1 Con. & L. 24,— and that parties e.xecuting in- 
 struments know what they mean, Lewis vs. R. R. 5 H. & X. 576, Androscoo-giii 
 B'k 10 Cush. 373, Clem. vs. R. R. 9 Ind. 488. 
 
 5. Seal is not now in the way of proving mistake, fraud or no consideration, 
 Jones vs. Ward, 10 Yerk, 160 ; but otherwise, if a receipt constitutes a part of 
 a contract as well as an acknowledgment o1 a sum of money as " Received 
 Brookfield, July 11, 1849, of Wm. D. Knapp, |40 in fall for damages done to us 
 by stage accident of the 13th of June last," Coon vs. Knapp, 4 Seld. 402 ; E"-- 
 leston vs. Knickerbocker, 6 Barb. 458. 
 
ONUS PROBANDI. 47 
 
 § 1-1. The only class of presumtions, therefore, which remain, 
 are those where the law, without the intervention of a jury, pre- 
 sumes one of the allegations on which the issue is joined to be 
 true or false, until evidence is given to prove the contrary. Such 
 are called presumptioncs j'uris, or rebuttable presumtions of law ; 
 and as they are pretty numerous, we shall content ourselves with 
 noticing some of the most important. 
 
 First, then, it is a general principle, which runs through the 
 whole law of England, that " Odiosa et inhonesta nou sunt in lege 
 prsesumenda," (1) (a); and again. "Injuria (2) non-pnesumitur," (Jj) ; 
 
 (a) 10 Co. 56 a. ; 3 Stark. Ev. 1M8. (6) Co. Lilt. 23-2. 
 
 1. A desire of self preservation as against suicide will be presumed, Cont. 
 Ins. Co. 2 ATeeldy X. 277, Weiss vs. R. R. lb. 214; Whitford vs. South- 
 bridge, 119 Mass. 564, so all contracts will be deemed to be lawful, Peldeman vs. 
 (ramble, 20 X. J. Eq. 494 ; and in an action to recover the value of work and 
 labor performed by the plaintiff for the defendant, it being in evidence on cross- 
 examination that defendant's business, in which the plaintiff was employed, was 
 the selling of rum, brandy &c., by the glass, and the defendant without introdu- 
 cing any witnesses in defence, contended, that the services rendered by the plaint- 
 iff, upon his own showing, were in the illegal sale of spirituous liquors, and that, 
 in the absence of any testimony to this point, the presumption of law was that 
 the plaintiff was not licensed so to sell. The court ruled that, " there is no pre- 
 sumption in favor of the defendant, that he had been violating the law, by selling 
 liquors without license, and that if he relied on the illegality of the contract, he 
 .should have given some evidence of the fact that rendered it so," Turnson vs. 
 Moulton, &c., 3 Cush. 269. See Smith vs. Joice, 12 Barb. 21; 24 Wend. 15; 
 1 Den. 175. 
 
 A Declaration on a Policy of Life Assurance alleged the contract between the 
 <leceased and the defendants to have been based on a declaration or statement in 
 writing by the deceased, in which were set forth " the past and present State of 
 his Health, and other circumstances touching his habits in life" ;-^and that the 
 policy contained a proviso, that " in case any untrue or fraudulent Allegation 
 were contained in the said Declaration or statement, or if any fact which ought to 
 have been stated therein, had been omitted therefrom, then the policy should be 
 void" ; with an averment that in the declaration or statement there was no un- 
 
 2. And when a party alleges a breach of common law duty which is denied by 
 the defendant, he must bear the burden of proof whether the breach be malfea- 
 ,«ance or nonfeasance, Dixon vs. Columbus R. R. Co., 4 Biss, 137 ; Horan vs. 
 Weiler, 41 Pa. 470 ; but when the wrong is established the presumption changes 
 and as between the wrong doer and the party injured, the presumption with re- 
 
48 ONUS PROBANDI. 
 
 on which maxims are founded SHveral presumptions of frequent 
 occurrence in practice. Thus the law never supposes, in the ab- 
 sence of evidence to that effect, that any person has been guilty 
 of a breach of its commands, or the violation of any rule of con- 
 
 true or fraudulent AUegatiou, and that no fact whieh ouglit to have been stated 
 therein, had been omitted therefrom, Plea, — that in the said statement it was al- 
 leged that the habits of the deceased were and had been sober and temperate, — 
 which Allegation was untrue ; — concluding with a verification, Keplication, that 
 the said Allegation was not untrue ; concluding to the country &:c. 
 
 At the trial before Park B, each party claimed the right to begin ; — and the 
 Huckman vs. Pernie 3 M. & W. 505, 2 Jur. 444, Eawlins vs. Desburough, 2 ISl. & 
 Kob. 70 ; Geach vs. Ingals, 14 M. & W. 95 9 Jur. 691 ; Ashby vs. Bates. 15 M- 
 & W. 589, were cited. 
 
 The Judge ruled this point in favor of the defendants on these grounds ; first, 
 the plaintiff in his declaration did not show what were the statements made by the 
 assured in the delaration which he caused to be delivered unto the office of the 
 ■society, but they were set out in the plea, and consequently must be proved by the 
 defendants ; secondly, the allegations of falsehood amounting to fraud in the as- 
 sured, and must therefore be proved by the party making them, the presumption 
 being always in favor of innocence and against fraud. As therefore, supposing 
 no evidence were given in support of the plea, the plaintiff would be entitled, to 
 recovsr, the defendants ought to b:\i-in," Loete vs. The Gresh. Life In;;. Co., 1.") 
 Jur. 1162. 
 
 spect to disputed facts are with the latter, Costigan vs. Mohawk etc. E. R. Co., 2 
 Denio, 609 ; Tin vs. Wharf Co. 1 Cal. 258 ; Loomis vs. Green, 7 Me. 389 ; and 
 upon questions of doubt as to number, quality or value of articles taken by a 
 purchaser, the presumptions are against the wrongdoer on the ground that it is 
 his misconduct which has raised or rendered difficult the question. But this rule 
 extends only so far as the misconduct is clearly proved.' Evidence that some ar- 
 ticles were taken wrongfully by defendandant does not warrant a presumption 
 that others which were in the same place and are missing are also taken by him- 
 Harris vs. Eosenburg, 43 Conn. 227 ; Taber vs. Jenny, Sprague, 315 ; also where 
 the rights of private property are invaded by one whose acts would constitute a 
 trespass, unless he can show he was justified by legal authority, he must be re- 
 garded as a trespasser ; — prima facie he is liable, and the burden is upon him to 
 show not design or intention to perform an official duty, but authority of law for 
 the act complained of, Lnmblom vs. Eamsey, 75 111., 246 ; 1 Curt. C. C. 439. Ho 
 there is a presumption in favor of the owner of property against one who claims 
 to be a 6o?io./!rfe purchaser from one obtaining the same by fraud, Stevens vs. 
 Krenan, X. Y. Janurj 1880. 9 Eept'r 281. 
 
ONUS PROBANDI. 49 
 
 duct prescribed either by common or statute law ; (3) and there- 
 fore, in all prosecutions whatever, whether for treason, felony, or 
 *15 misdemeanor, the party accused is always entitled to be con- 
 sidered* innocent of the offence imputed to him, until his guilt 
 has been clearly manifested by evidence (4) ; although, to estalv 
 lish the accusation, it may become requitite to prove a negative. 
 Thus, in Rex vs. Combs, (c) ; where an information was exhibited 
 against the defendant for perjury, in an affidavit in which he 
 swore affirmatively to the truth of a proposition, it was held b}- 
 the Court, that it la}' on the other party to give probable evi 
 dence, in the iirst instance, of the falsehood of the affirmative 
 allegation. (5) ' And in Rex v. Lord Halifax, {d) ; which was an 
 
 (e) Comb. 57 ; 3 Jao. i. (d) 2 Ev. Tot. 145. 
 
 3. It cannot be presumed that a licensed engineer who has taken an oath to 
 perlorm his duty faithfully would obey illegal order,-; of the captain, McMahon 
 vs. Davidson, 12 Minn. 357. 
 
 4. Proof beyond reasonable doubt is the language of the courts. But this does 
 uot mean that prepondereuce only of testimony is required. Presumptions, also 
 nui.-t be taken into view. The evidence of guilt must preponderate over both the 
 testimony to. and the presumption of innocence, Jones vs. Greaves, 26 Oh. State 
 2 : Bur vs. "Wilson, 22 Minn. 206 ; Werton vs. Gravlin, 49 Vt. 507. In criminal 
 prosecutions the burden never shifts upon the defendant, exxept when he attempts 
 to justify. Com. vs. Kimball, 24 Pick. 336 ; Ogletree vs. State, 28 Ala. 693 ; 
 <.'om. vs. Dana, 2 Mete. (Mass.) 329, nor does a resort to the proof of an alibi 
 •(change the burden on other questions of the case, Fife vs. Com. 2s Pa. 429, and 
 Ji new trial will be granted if the court charge tliat the rule as tu "reasonable 
 <loubt'' is somewhat relaxed in the lesser grade of offenses, AVarden vs. State, 18 
 Oa. 264 ; and proof beyond a reasonable doubt is necessary to establish a fact 
 ittjainst a prisoner, preponderating proof which satisfies a jury of the fact is suf- 
 ficient to establish a fact in his favor. People vs. Melgate, 5 Cal. 127. The lan- 
 guage used by Dr. "Whart. in his Ev. 1 12 44 is that " reasonable doubt of guilt in 
 criminal trials is ground for acquittal, in cases where, if we subtracted the pro- 
 bative force of the presumption of innocence, there might be a conviction." 
 
 The learned Doctor's error consists in treating by implication " reasonable 
 iloubt" as a defcncivc fact, " ground for acquittal" — when acquittal results as 
 matter of law, on account of failure of proof, so long as there is rr'asoiiahlr 
 iJouht, there is wo primn facie case l)y the State. 
 
 5. The indictment must point out the statements charged to be false and also 
 contain a specific allegation of the falsehood of such false statement relied on for 
 
50 
 
 ONUS PKOBANDI. 
 
 information against the defendant for refusing to deliver up the 
 rolls of the Auditor of the Exchequer, it was held, that it lay on 
 the plaintiff to prove the negative, viz. : that he had not delivered 
 them up ; as it was his duty to have done so, and the law, in the 
 absence of evidence, would presume that he had complied with 
 it. (6) 
 
 § 15. l>J"or is this principle confined to criminal proceedings, 
 where the individual is put upon his trial to answer the charge of 
 having violated the law ; even in civil cases, where the conduct 
 of a party comes in question collaterally, he is still entitled to the 
 same presumption of innocence. (1) Thus, in the case of Chapman 
 V. Pickersnill, (a) ; which was an action for falsely and malciously 
 suing out a commission of bankruptcy ,which was afterward super- 
 seded ; and after a verdict for plaintiff, it was moved, in arrest of 
 i udgment, that there was no averment that the plaintiff was not 
 indebted to the defendant, or that he had never committed an act 
 
 (a) 2 Wils. 147. 
 
 6. " The general rule is, that when a person is required to do a certain act, the 
 omission of which would make hnn guilty of a culpable neglect of duty, it ought 
 to be intended that he has duly performed it-" Hartwell vs. Boot. 19 Johns, 347^ 
 3 East, 192, 10 Id. 216. 
 
 1. So held in Case vs. Case, 17 Cal. 598. 
 
 a conviction, King vs. Perrott, 2 M. & S. 379, two witnesses are required as well 
 to prove the facts sworn to as the falseness of the oath in perjury, State vs How- 
 ard, 4 McCord (S. C.) 159, and proof must be offered that the false oath wa? 
 taken wilfully and corruptly, Gretn vs. State, 41 Ala. 419, State vs. Lea. 3 Id. 
 602 ; State vs. Carland. 3 Dev. (N. C.) 114, Juaragui vs. State 28 Tex. 627. 
 
 So in actions on the case for deceit in obtaining money or property under false 
 pretences, Woodhull J. in Byard vs. Hoimes, 5 Vr. 299, says, " that a mere gen- 
 eral allegation that the matter stated was a pretence, and that the plaintiff was- 
 falsely and fraudently. deceived by it, is not sufficieut, eithi^r in criminal or civil 
 cases, to fasten upon such matter the character of a false pretence, and that this- 
 can be done in no other way than by a distinct and specific averment of the false- 
 hood of each separate matter of fact stated by the defendant and intended to bo 
 denied by the plaintiff," King vs. Perrott supra, Peop. vs. Rtorn, 9 Wend, 182^ 
 Peop. vs. Haynes, 11 Id. 557, Peop. vs. Gates, 13 Id. 311. The falsificatiuns must 
 be distinct, affirmative and specific and not conjunctively — by way of negative 
 pregnant, Byard vs. Holmes, supra. 
 
ONUS PROBAND!. 51 
 
 of bankruptcy ; but it was held by the Court, that the declara- 
 tion would have been good even on demurrer, and n fortiori was 
 sufficient after verdict ; that in an action for words, for saying 
 that the plaintift" was a thief, it is not requisite to aver that he 
 "16 was not such, for the law would presume* his innocence. (2) 
 •2. It is laid down in Whart. Ev. § 1246, that reasonable doubt of guilt to work 
 an acquittal, does not apply to civil issues. And concludes (if any conclusion be 
 possible from his comparisons) that the "better view is, that in civil issues the re- 
 sult should follow the preponderence of evidence, even though the result imputes 
 crime. Woodhull J. in Kane vs. Hib. Mut. Fire Ins. Co., 9 Yr. 446, satisfactorily 
 vindicates the rule in Thurtell v. Beaumont, 1 Bing. 339, wherein the defence set 
 up was that the plaintiff had wilfully set fire to the premises, or had caused them 
 to be set fire to. In charging the jury, the learned judge directed them, "that be- 
 fore they gave a verdict against the plaintiff, it was their duty to be satisfied that 
 the crime of wilfully setting fire to the premises was as clearly brought home to 
 him in this action, as would warrant their finding him guilty of the capital offence, 
 if lie had been tried before them on a criminal charge." In Charal)ers v. Sharkell. 
 d. ah. 6 C. <fc P. 475, — an action on the case for libel, in charging the plaintiff 
 with the forgery of a certain bill of exchange, the same doctrine was applied. 
 On a plea of justification, stating in substance that the plaintiff had been guilty 
 of forgery, kc. Tindal C. J. said to the jury, "We cannot consider the plea in 
 any other way, or on any other kind of evidence, than if we were trying the plain- 
 tiff for the offence alleged in it," In Wilmct vs. Harmer, el. al. 8 0. & P. e'.).!, it 
 was held by Deuman 0. J. that a plea of justification to a libel, in which the de- 
 fendant justifies on the ground that the plaintiff was guilty of bigamy, requires 
 the same strictness of proof as is required on the trial of an indictment for big- 
 amy. See AVoodbeck vs. Keller, 6 Cow. 118 ; Clark v. Dibble, 16 Wend. 601 ; Hop- 
 kins V. Smith, 3 Barb, Steinman vs. McWilliams, 6 Barr. 170. The learned jus- 
 tice in Kane v. Hib. Mut. Ins. Co. supra concludes, "I remark that, whether ap- 
 plied to criminal or civil cases, the reason of the rule seems to me to be the same, 
 and the rule itself rests upon precisely the same foundation, viz. : that the legal 
 presumption in fovor of innocence, a presumption which is not, as some seem to 
 suppose an arbitrary contrivance to screen the guilty when under indictment, — 
 but a conclusion of law drawn from general experience of human conduct, and 
 designed to protect the innocent — a presumption of such potency that it can be 
 overcome by nothing short of full and satisfactory proof— that is, by the highest 
 measure of proof defined by the common law, as distinguished from that by mere 
 preponderence of evidence. As the rule in question merely recognizes and give? 
 effect to this universal presumption of law, I cannot think that it is either unreason, 
 able or unjust." But the X. J. Ct. of App. reversed the decision of Justice 
 ■Woodhull in Kane vs. Hib. Mut. Ins. Cc, supra, which establishes the rule of 
 
OZ ONUS PROBASDI. 
 
 And in the case of Williams v. E. I. Company, {b) ; which was art 
 action against the defendants for having put on board the plain- 
 tiff's ship (which they had hired to convey merchandise) a quan- 
 tity of combustible matter, without giving him notice of its dan- 
 gerous nature, through which negligence, his ship was burnt-,. 
 Lord Ellenborough said, "There is a rule of law, that when any 
 act is required to be done on the one part, so that the party ne- 
 glecting it would be guilty of a criminal neglect of duty in not 
 having done it, the law presumes the affirmative, and throws the 
 burthen of proving the contrary on the other side ; that in that 
 case the neglecting to give notice of the dangerous nature of the 
 goods was such conduct as, if true, would subject the defendants 
 to be prosecuted for a misdemeanor at least ; and it was held, that 
 it lay on the plaintiff to prove that no such notice had been given. 
 
 § 16. On the same principal it is, that the law always presumes 
 a child which has been born during wedlock to be legitimate, (1) 
 (a) ; and this even though the husband and wife are living apart by 
 mutual consent, (b) ; but in case of a divorce a mensa et thoro, which 
 is a separation decreed by a Court of competent jurisdiction, the 
 law will presume that the terms of the sentence have been com- 
 plied with, and will deem issue born during that separation to be 
 prima facie illegitimate, (lb.) 
 
 JSTor is the presumption of innocence confined to the parties ac- 
 tually before the Court as litigants in the cause ; it is said by 
 
 (6) 3 East. 192. (o) 1 Plnl. Ev, 146. (6) St. George vs. St. Margaret, I Sane. 123- 
 
 ]. The presumption of legitimacy canuot be rebutted by slight evidence. 
 Denkins vs. Samuel, 10 Eioh. (S. C.) 66 ; Coujolle vs. Ferrie, 26 Barb. 117. And 
 ■whether there was intercourse cannot be inquired of from either father or mother 
 either directly or by aid of circumstances from which the result could be inferred, 
 Chamberlain vs. Peop. 23 N. Y. 85 ; Boykin vs. Boykin, 70 N. 0. 262 ; and a mo- 
 ther of a child begotten before marriage, though born after, is incompetent to ^ 
 prove that the child was not begotten by the husband, Denuison vs. Page, 29 Pa. 
 436. But this presumption may be overcome by competent proof that the hus- 
 band was incapable on ground either of impotence or absence, of being the father 
 of the child. Head vs. Head, 1 Sim. & S. 150 ; Cope vs. Cope, 1 M. & Eob. 269 : 
 5 0. & P. 604 ; Morris vs. Davis, 3 C. & P. 215 ; Sullivan vs. Kelly, 3 Allen, 148. 
 Dr. Wart., supra, in N. J. But in the conflict of authority, the editor prefers 
 the doctrine laid iown by WoodhuU as the more reasonable. 
 
ONUS PROBAND!. 5B. 
 
 BuUer J. in Ross v. Hunter, (c) ; that the Court cannot presume 
 fraud (and a fortiori guilt) in a third party ; and there seems to 
 be no doubt of the correctness of this opinion. 
 
 § 17. Where any particular forms are required to be gone 
 *17 through, either by common or statute law, in order to* qual- 
 ify a party to hold an office of which he is in the enjoyment or 
 possession ; (1) or where generally any particular course of proceed- 
 ing has been prescribed by statute, the law always presumes that 
 those forms have been gone through, and the requisitions of the 
 act of parliament complied with. (2) Thus in the case of Monke 
 V. Butler, (a) ; which was a suit in the Spiritual Court for tithes, 
 
 (e) 4T. R.33. (a) 1 Rol. R. 83. 
 
 1. Evidence of action as a public officer is prima facie evideace of appoint- 
 ment and qualification, (Allen vs. State, 21 Ga. 217 ; Wood vs. Terry, 4 Lans 
 80) ; and the return of Commissioners of Election throws the burden on the rela- 
 tor to show that bad votes were given for the incumbent, U. S. vs. Carberry, 2 
 Cr. C. C. 3.i8 ; Eook & Wash. Turup. Co. vs. Van Nese, 2 Id. 449. An officer 
 de facto is a person who is such by color of election, though inelligible, or though 
 the office was not vacant, Gregg vs. Jamison, 55 Pa. 468 ; but he is a mere usur- 
 per if the office be not elective, People vs. Albertson, 8 How. Pr. 363 ; Wilcox 
 vs. Smith, 5 Wend. 231 ; Plymoth vs. Painter, 17 Conn. 585 ; Kice vs. Com. 3 
 Bush. 14 : Brown vs. Lunt, 37 Me. 423 ; Hooper vs. Goodwin, 48 Me. 79 ; Com- 
 niis vs. McDaniels, 7 Jones (N. C.) L. 107. 
 
 The right of a person acting colore officii can be tried only in a proceeding to 
 which he is a party, directly presenting the question, and not in a collateral way 
 between third persons, Douglass vs. Wickwise, 19 Conn. 489; Tracy vs. Fuller, 
 13 Mich. 257 ; Dean vs. Thompson, 19 X. H. 290 ; Com. vs. McComb, 56 Pa. 436 ; 
 and when the question of compatibility of two offices arises, the question turns 
 upon the point of homogeniousness ; one must not be judicial and the other min- 
 isterial. The functions of a county supervisor are chiefly ministerial, and those 
 by a circuit clerk wliolly so, and the discharge of the duties of the two by the 
 same person are not incompatiable. State vs. Teibleman, 28 Ark. 424 ; and when 
 a trial justice accepts a commission as deputy sheriff, his office as a trial justice 
 is thereby vacated, being incompatible, Stubs vs. Lea, 64 Me. 1 95. 
 
 2. Brown J. in Peop. vs. White, 24 Wend. 525, says, "N'o principle is better 
 settled than that the acts of such persons are valid when they concern the public 
 or the rights of third persons who have an interest in the act done.'' Nelson vs.. 
 The Peop.. 23 X. Y. 296 ; and in the absence of proof to the contrary the pre- 
 sumption is that officers, acting as such, have taken the proper oath, Nelson vs. 
 Peop. supra, 1 Hill, 159 ; 21 Wend. 47 ; 3 Hill 75, 22 Barb (156. 
 
54 ONUS PROBANDI. 
 
 the defendant pleaded that the plaintiff had not read the articles, 
 as required by statute, which allegation he was called on by that 
 Court to prove ; and on his applying for a prohibition, it was re- 
 fused by Coke C. J. and Doddridge J. who said, that in the ab- 
 sence of evidence the law would presume that those articles had 
 been read by him. And in a case of tithes, by a rector, under 2 
 Ed. 6, {b); where it was objected for the defendant, that the plain- 
 tiff ought to prove his admission and institution, and also that 
 he had read the articles of the church ; it was ruled by the judge 
 who presided that those circumstances were to be presumed, and 
 if the fact were otherwise, it lay on the defendant to show it. 
 
 § 18. The same doctrine has also been fully recognized and 
 acted on in- later times; in Powell v. Millbank, (a) ; which was 
 an action brought to try the right to a donative ; where, though 
 the plaintiff was in orders, he neglected to prove at the trial that 
 he had since his nomination subscribed the declaration required 
 by 13 & 14 Car. 2, e. 4, for the uniformity of public prayers : and 
 the Court of Common Pleas, on a case reserved, held that it was 
 necessary for him to have proved that fact, as, in the absence of 
 evidence to the contrary, his conformity with the requisites of the 
 statute would be presumed. And in Eex v. Hawkins, (b) ; which 
 was an information in the nature of a quo warranto, in order to 
 *18 try the *merits of a controverted election to a corporate of- 
 fice ; whei'e it was objected to the defendant, that on his own ad- 
 mission he had not taken the sacrament within a year, as required 
 by statute; to which was urged in his favour, that non cori-^talHtt, 
 that his opponent had not equally neglected to do so ; it was held 
 by the Court, that in the absence of evidence to the contrary', it 
 was to be presumed that the other party had conformed to the 
 law. (1) 
 
 (b) Clay R. Pleas of Assize 4S. (a) 3 Wils. 355. (6) 10 East -JU. 
 
 1. Upon an information for a quo warranto, the defendants in possession 
 will be presumed to hold rightfully, — and the plaintiff's must take their case and 
 go forward upon proof and argument, State vs. Hunton, 28 A^'t. 51)4 ; but it would 
 seem to be otherwise on quo luarranto for usurping a franchise, — as the People 
 or State has ihe prima facie title, and it lies with the defendant to show his war- 
 
ONUS PROBANDI. 55 
 
 The old statutes (a) directed, and the modern one 7 G. 4, c. 64, 
 directs, that when any person is brought before a magistrate on a 
 charge of felony, the justice shall, previous to committing or bail- 
 ing the party, take in writing the examination of the prisoner, 
 and the depositions of the witnesses against him ; and as it is 
 always presumed that the provisions of an act of parliament have 
 been complied with, it will be presumed here, that the examina- 
 tion of and depositions against a prisoner have been taken in 
 writing ;(&) and parol evidence of anything that may have been 
 said before the committing magistrate is not admissible iintil it 
 is proved not to have been so taken dowu.(c) 
 
 § 19. In iurther pursuance of this principle the law presumes, 
 that any duty imposed on a corporation (1) or an individual has 
 been duly and regularly performed by him ; (2) that a parson is 
 
 (a) 1 & 2 Ph & M. c. 13, and 2 & 3 Ph. & M. (6)3 Stark. Kv. r24-2. 
 c. 10. (c) Phillips vs. Wimhmn, 4 C. * P. 273. 
 
 1. The burden of showing the invalidity of a corporate contract rests witli 
 the assailant Ala. Life Ins. (!o. vs. Central Ag. Ass. 54 Ala. "73 ; so is the 
 presumption against ultra vires Galena vs. Corwith, 48 111. 423 ; — it will be 
 presumed not to have exceeded its powers in taking a bond it sues on, McFarlan 
 vs. Triton, Ins. Co. 4 Denio 392, and debts due to it will be presumed to have 
 been contracted in the lawful course of business, N. Y. Firemen's Ins. Co. vs. 
 Sturges, 2 Cow. 664, — so the indorsee of a corporation has a right to presume 
 that it was transferred in pursuance of a resolution of the board of directors, 
 Aiken vs. Blanchard, 32 Barb. 527, 33 lb. 336. — but no presumption of poiiycr on 
 the part of a municipal corporation to issue negotionable paper pledging' its credit 
 by implication or construction, per Dillon, Gause vs. City of Clarksville, 18 Law 
 Beg. 479, or a national B'k to enter into a contract of guarranty Seligman vs. 
 Sharlottsville, Nt. B'k. .9 Eeporter 72. And it is said that the presumption that 
 public officers have performed their official duty does not apply to the proceedings 
 of a municipal legislature. Granger vs. Buffalo, 6 Abb. N. 0. 239, so there is no 
 presumption that municipal agents are acting within their authority. Smith vs. 
 Newburgh, 19 Alb. li. J. 397. 
 
 2. The averment of neglect of official duty must be supported by some proof 
 by the party making it, though very little evidence will suffice to shift the bur- 
 
 rant for exercising it, Peop. vs. Utica Ins. Co., 1 5 Johns 358 ; 1 Ark. 513 ; 3 Id. 580 ; 
 not guilty or non usurpavit is not a good answer in quo loarranto ; it should be 
 a justification or a disclaimer. Attorney Gen'l. vs. Foote, 11 Wis. 14. 
 
56 ONUS PROBANDI. 
 
 alwaj-s resident on his benefice, (1) (a) that the juuajment of a 
 Court of competent jurisdiction are well founded; (2) that 
 
 (a) Co. Litt.78 b. 
 
 1. A residence in law once obtained, continues without inteniiission until a new 
 one is gained, Cadwallader vs. Howell, 3 Harr. (\. J.) 138 ; 3 Vr. 192. 
 
 2. Bk. U. S. vs. Dandridge, 12 Wheat, 69 ; Florentim vs. Barton, 2 Wall. 210 ; 
 Oofleld VM. McClelland, 16 Id. 331 ; McKitt vs. Turner, id. 3.52 : Garneharts vs 
 U. S. Id. 162 ; Pittsburg R. R. vs. Ramsey, 22 Id. 322 ; Ready vs. Scott, 23 Id. 
 352 ; Stearns v.«. Stearns, 32 Vt. eTS ; Cowen vs. Bolkom, 3 Pick. 2HI ; Scher- 
 horne vs. Talman, 14 N. Y. 93 ; Cromelien vs. Brink, 29 Pa. 522 ; State vs. Lewis, 
 22 N. J. L. 564, — so when damages are assessed, it will be presumed that they 
 were assessed on a good canse of action, when such is averred ; Barnes \'s. Jen- 
 nings, 40 Vt. 45, — and where jurisdiction is averred, all the facts -necessary to 
 constitute jurisdiction will be presumed ; Ray vs. Rowley. 4 Thomp. & C, 43, 1 
 Hun. 614. .Tudicial records are presumed to have been correctly made ; Reed vs. 
 Jackson, 1 Bast. 355 ; Ramsbottom vs. Buckhurst, 2 M. & Sel. 567 ; R. vs. Carlisle, 
 '2 B. & Ad. 367 ; and when regular they cannot except in cases of fraud or non- 
 jurisdiction be collaterally impeached ; Glyan vs. Thorpe, 1 Barn. A: A. 153 ; 
 Amory vs. Amory, 3 Biss. 266 ; Pass. vs. Edwards, 47 Me. 145 ; Willard vs. 
 Whitney, 49 Me. 235 ; Douglass vs. Wickmire, 19 Conn. 489 ; Dows vs. Mc- 
 
 ■den of proof, Dobbs vs. Justice, 17 G-a, — ; Dollarhide vs. Muskatine Co.. 1 
 Oreene 158 ; Lea vs. Polk Co, Cap Co. 21 How. 493 ; Guy vs. AVashburn, 23 
 <Cal. Ill ; Todemier vs. Aspinwall, 43 111. 401 ; Mercer vs. Doe, 6 Ind. 80 ; State 
 vs. Bailey, 16 Id. 46 ; Jenkins vs. Porkhill, 25 Id. 478 ; Ellis vs. Garr, 1 Bush. 
 527 ; Hartwell vs. Root, 19 Johns, 445 ; Kelly vs. — , 58 Pa. 302 ; Sennett vs. State 
 17 Tex. 308 ; and u, delinquency of a sheriff will not l)e presumed ivithout a pre- 
 ponderance of proof, Stevens vs. Deats, 12 Tr. 340 ; 6 Id. 392 ; 11 Id. 356. But 
 the law will not supply an independent fact, U. S. vs. Ross, 2 Otto. 283, so when 
 the law has made the action of one officer, a requisite preliminary to that of 
 another, a performance of duty by the one who should first act, will not be pre- 
 sumed in aid of an action against the other for non-performance. Soup, of Hough- 
 ton vs. Rees, 34 Mich. 481, Best on Ev. I 300. 
 
 When a wife flies a bill to avoid a mortgage made on the homestead of her hus- 
 band during the family occupancy of it on the ground that she never knowingly 
 signed or acknowledged it, all presumptions in case of conflict of testimony must 
 be treated with reasonable respect to the improbability of misconduct in a reput- 
 able officer, or of forgery which he ought to have discovered if it existed, and the 
 burden is on the complainant to make out a plain case, Hourtieum vs. Schvoor 
 33 Mich. 274, But in all these cases the official proceedings must appear on their 
 face to be regular, Welsh vs. Cochran, 63, N. Y. 181. 
 
ONUS PROBANDI. 57 
 
 judo-es, juries, and officers of justice do nothing maliciouslj-, 
 &c., &c. (1) 
 
 It is another branch of the rule, "odiosa et inhonesta non sunt 
 prjesumenda," that the law never presumes fraud or covin, hut 
 always the reverse. (2) And if the conduct of a party, or a deed, 
 
 1. Where tlie act is judicial, and done pendente lite, no action lies, however 
 ■wrongful and injurious to the party, whether the act was done mala fides or with 
 the most honest intentions, provided the justice had jurisdiction of the parties 
 and the subject matter of the suit. Nothing depends upon the quo animrj with 
 which the act was done, but upon the right and authority of the officer to do it. 
 Taylor a-s. Doremus, 1 Harr. (N. J.) 473 ; Mangold vs. Thorpe, 4 Vr. 131. 
 
 2. Good faith in business transactions is a well-settled presumption of 
 law ; Hagar vs. Thompson, 1 Black. 80 ; Cooper vs. Galbath, 3 Wash. 
 -346 : Blaidsdell vs. C'rowell, 14 Me. 370 ; Suiter vs. Lackmau, 3!) Mo. 91 
 Eoberts vs. Gurnsey, 3 Grant (Pa.) 237 ; Reeves vs. Dougherty. 7 Yero-. 222 ; 
 Eichards vs. Kountze, 4 Xeb. 200; Bumpus vs. Fisher, 21 Tex. 561 ; Green- 
 wood vs. Lowe, 7 La. Au. 197, and the burden of proof is on the party who as- 
 sails good faith and leijulity, Sutters vs. Lackman, 39 Mo. 910; Silvers vs. 
 Hedges, 3 Dana 439 ; Ross vs. Drunkard, 35 Ala. 434 ; Evans vs. Evans, 2 Coldw. 
 143; Reed vs. Xixon, 48 111. 323 ; Wilson vs. Lazier, 11 Gratt. 477. Fraud can- 
 not be presumed, unless the circumstances on which such presumption is founded 
 are so strong and pregnant that no other reasonable i_-unclusion can be drawn 
 from them, Baxton vs. Boice, 1 Tex. 317 ; even strong presumptive circum- 
 stances of fraud will not outweigh positive testimony against it. Short vs. Staple 
 1 Gall. 104 ; and it is held that a representation, made without intent to deceive, 
 in the belief that it is true, whether it be a representation imputing the exist- 
 ence of a fact or imparting knowledge of the fact, is not, pei- fie. a fraud for 
 which an action will lie, whatever the representation may be ; it is in such actions 
 a question, and a vital question, whether it was fraudulently made : that it Avas 
 made improvidently or indiscreetly is not enough. 
 
 Falsehood — the intent to deceive and damage — must concur. Parsley vs. Free- 
 Michael, (> Paige 139 ; Hageman vs. Salisbury, 74 Pa. 280 ; Roy vs. Townsend, 
 78 Id. 329; Quinn vs. Com., 20 Gratt. 138; So. B'k vs. Humphreys, 47 Ills. 
 227 ; Farley vs. Budd, 14 Iowa 289; and when the records are made up errone- 
 ously, the Court of Record must be applied to for relief, Trafton vs. Rogers, 13 
 Me. 315 ; Cone vs. Bullard, 9 Mass. 270 ; Brier vs. AVoodbury, 1 Pick. 362 ; 
 Gardner vs. Humphrey, 10 Johns, 53 ; Clammer vs. State, 9 Gill. 279 ; Jenkins 
 vs. Long, 23 Ind. 460; Com. vs. Judges of Com. Pleas. 1 Serg. * R. 192 ; Cly- 
 mer vs. Thomas, 7 Id. 180. 
 
58 ONUS PROBANDI. 
 
 or writini^, be susceptible of two constructions, (1) one conveying- 
 *19 a meaning which the law would *carry into effect as lawful 
 
 1. The possession' of an order by him on whom it is drawn is prima facie evi- 
 dence that the articles theu-ein specified were delivered according to request, Kin- 
 caid vs. Kincaid, 8 Humph. 181 ; and it is the duty of a party who alleges a fact 
 which would deprive his adversary of a sum apparently due him and evidenced 
 by proper vouchers, to give some testimony of that fact, be it ever so slight, 
 before submitting it to a jury, Zerbe vs. Miller, 16 Pa. 488. So in an indict- 
 ment against a man and woman for living together as husband and wife without 
 being married, it is incumbent on the State to establish, by jirima facie evidence, 
 at least, that the parties are not husband and wife. Hopper vs. State, 19 Ark- 
 143. But if the transaction in point of law be unfair, no such prescription obtains. 
 Loomas vs. (Jreen, 7 G-reenl. 386 ; Short vs. Staple, 1 Gall, 104. 
 
 Castigon vs. Mohawk, &c., Co., 2 Denio 609 ; Hair vs. Little, 28 Ala. 236 ; 
 Shells vs. "West, 17 Cal. 324 ; Paxton vs. Boyce, 1 Tex. 31 7 ; Finn vs. Wharf 
 Co., 7 Cal, 253. And in trust and fiduciary relations of all denominations, unfair- 
 ness will be inferred and presumed ; and the burden is on the party claiming 
 under such relation to prove the perfect fairness, adequacy and equity of the 
 transactions, and that, too, by proof entirely independent of the instrument 
 under which he may claim, Cumb. C. I. Co. vs. Parish, 42 Md. 598 ; Street vs. 
 Goss, 62 Mo. 226 ; Clarke vs. Limotte, 15 Beav. 240 ; "Walker vs. Smith, 29 Id. 
 396 ; "Wistars Appeal, 54 Pa. 60 ; Brown vs. Bulkley, 13 N. J. Eq. 451 ; Uhlich 
 vs. Muhlko. 61 111. 499 ; Hunter vs. Atkins, 3 Myl. & K. 135. So of a broker to 
 sell, who is at the same time a broker to buy. If this double agency be unknown 
 
 man, 3 T, E. 51 ; Addington 'vs. Allen, 11 Wend. 374; Marsh vs. Fallter, 40 N. 
 Y. 562 ; Haycraft vs. Creasy, 2 East, 92 ; Russel vs. Clark's Ex'rs, 7 Cr. 69, 9 ! ; 
 Myer vs. Aniedon, 45 N. Y. 168 ; Horan vs. Weiler, 41 Pa. 570 ; Calvert vs. Car- 
 ter, 18 Md. 73 ; Wilson vs. Lazier, 11 Gratt. 477 ; Shehann vs. Davis, 17 Ohio. 
 St. 371 ; Ewing vs. Gray, 12 Ind. 64 ; Bullook vs. Narrott 49 111. 62 ; Wadding- 
 ton vs. Loker, 44 Mo. L32. Nor can fraud be predicted upon a mere promise to 
 be performed in the future, Eorshmider vs. Knickerbocker Life Ins. Co., N. Y. 
 May 21, 1878. 
 
 An insolvent debtor when he renders a schedule of his property and debts, is: 
 presumed to tell the truth and not commit perjury, Harlett vs. Hewlett, 4 Bdw. 
 Ch. 7. See AVillson vs. Melvin, 13 Gray 73!^ 
 
 In an action by a husband to recover damages from defendant for assisting his 
 wife to leave him, the assistance being at the request of the wife allegino- ill. 
 usage, the burden is on the plaintiff to prove an unlawful motive or design on. 
 defendant's part, Barnes vs. Allen, 1 Abb. N. Y. App. Dec. HI. 
 
ONUS PROBANDI. 5& 
 
 and another which would be illegal, the parties will always be 
 presumed to have contemplated the former ;(1)(6) as if a tenant in 
 tail makes a lease for life generally, without saying for whose 
 life, it will be presumed that he meant for his own, as that is an 
 estate which he can lawfully make ; whereas had the lease been 
 for the life of the lessee, it would work a discontinuance, (r). 
 
 "When acts have been done by parties, or conveyances made by 
 them, the law endeavors as far as possible to give those acts effect, 
 and prevent their becoming void and inoperative ; (2) and accord- 
 
 (6) Co. Litt. 78 b. (c) Id. 42, a & b. 
 
 1. Atkyiis VS. Horde, 1 Burr. 106 ; Lewis vs. Davidson, 4 M. & V>\ 6.54 ; Marsh 
 vs. Whitmore, 21 Wall. 178; Tucker vs. Meeks. 2 Sw. (X. Y.) 736; Foster vs. 
 Eockwell, 104 Mass. 167. 
 
 When there is a doubt as to the existence of a, trust, the burden of proof lies 
 on the party who alleges it, Prevost vs Gratz, 6 Wheat. 481 ;. Att'y Gen'l vs. 
 Beformed Dutch Church, 33 Barb. 303. 
 
 The burden of proof is on a trustee in a snit against him for an account of 
 specific articles, Horry vs. Glover, Riley (S. C.) Eq. 53. 
 
 Where a person standing in a confidential relation to an intemperate executor 
 who has wasted the estate, is found in possession of part of the assets, in a suit 
 by a creditor to follow such assets, it is incumbent on him to show that he pur- 
 chased fairly and paid the price, Barna Well vs. Triadgill, a Jones (X. V.) Eq. 50 
 Wistar's Appeal, 54, Pa. St. 60. 
 
 2. While a person is presumed to know the legal effect of his contract (Mears 
 vs. Graham, 8 Black. 144), although he cannot read or write (Harris vs. Story, 2 
 E. D. Sm. 363, and Bank vs. Kimbal, 10 Cash, 373), yet a clause, even in a 
 contract susceptible of two constructions, will be taken in that sense which will 
 give it some operation instead of one that will give it none, Archbold vs. Thomas 
 2 Cow. 284; Hunter vs. Anthony, 8 Jones (N. C.) 385 ; Pickham vs. Huddock, 
 36 111. 38 ; Lynch vs. Livingston, 8 Barb. 463 ; 6 N. Y. 422 ; Evans vs. Sanders, 
 S Port Ala. 497. And a construction rendering a contract illegal will be rejected 
 if a consistent legal construction can be made, Merrill vs. Melchoir, 30 Miss 516; 
 Alcott vs. Tioga E. E. Co., 27 N. Y. 546 ; Patrick vs. Grant, 14 Me. 233. And 
 to refuse such an instruction is error. Smith & Bennett vs. State, 12 Vr. 396. 
 And it is held that the law presumes that when parties enter into contracts, they 
 
 to the principals, it is a breach of his implied contract with each ; and he can- 
 not recover for his services, irrespective of the advantages to the parties, Duryee 
 vs. Lester, 75 X. Y. 442. 
 
60 ONUS PROBANDI. 
 
 ingly lays down as a maxim, "Omnia prfesurauntur legitime facta, 
 (or solemnite et rite esse acta,) donee probetur in contrarium.((^) 
 Thus where a fine has been levied, it will be presumed that it 
 was with proclamations,(e) and if a feoiFment be declared on, 
 attornment will be presumed. (1)(/) 
 
 (d) 1(1. 232 b. (e) 3 Co. 80 b. (/) 3'Stark. Ev. 1242. 
 
 ]. Documents, on their face solemnly executed, are presumed to have been 
 executed in conformity with the local law of the place of execution, Roberts vs. 
 Pillow, 1 Hemst, 624; R. vs. Uray, 10 B. & 0. 807 ; R. vs. Ashburton, 8 Q. B. 
 876 ; R. vs. Whiston, 4 A. & E. 667 ; Diehl vs. Emig, 6.5 Pa. 320 ; State vs. 
 Lawson, 14 Ark. 114 ; People vs. Snyder, 41 X. Y. 397 ; 51 Barb. 589. So when 
 notices, affidavits, &c., are directed to be preserved in a particular office, a failure- 
 to find them there raises a presumption that no such document existed, Merrill vs. 
 Douglass, 14 Kans. 293 ; Hall vs. Kellogg, 16 Mich. 135. In assessments of ta-ies 
 for general purposes, every presumption is in favor of the regularity of the tax 
 imposed, Harned v.s. Manning, 12 Vr. 278 ; Doughty vs. Hope, 3 Denio 595 ; 1 
 Comst. 79 ; 9 Otto 441. Recitals in a sheriff's deed are not prima facie evidence 
 of facts stated in them, except as to those recitals which the law requires to be 
 inserted. Marsh vs. The City of Brooklyn, 59 X. Y. 280 ; Brown vs. Goodwin 
 et als., 75 X". Y. 413, — as his acts are not judicial. An appearance will be taken 
 
 to be a general one. unless the contrary appear, Dreshler vs. , 1 Morr. 
 
 403. The presumption is that a defendant on trial continues in court de die in 
 diem to the end. Smith and Bennett vs. State, 12 Vr. 352. 
 
 When a wife files a bill to avoid a mortgage made on the homestead of her 
 husband, during the family occupancy of it, on the ground that she never know- 
 ingly signed or acknowledged it. all presumptions in case of conflict of testimony 
 must be treated with reasonable respect to the improbability of misconduct in « 
 reputable officer, or of forgery, which he ought to have discovered if it existed., 
 and the burden is on the complainant to make out a plain case, Hourtieum vs. 
 Schvoor, 33 Mich. 274. 
 
 intend performance; and that they are supposed, if two systems of law are before- 
 them — by one of which the contract would be good, the other bad— to incorpor- 
 ate into the contract the law which would make the contract operative, Cutter 
 
 vs. Wright, 22 X. Y. 472 ; Kilgore vs. , 25 0. St. 413 ; Kenyon vs. 
 
 Smith, 24Ind. 11 ; Smith vs. Whitacre, 2;! 111. 367 ; Hunt vs. Jones, R. I., Feb.. 
 1880 ; 8 Reporter 590. So a promissory note, which was dated and delivered in 
 Maine, where it is a legal obligation, was signed a;id mailed in Massachusetts, 
 where it was void, will be construed to be a contract in the former State, Bell vs. 
 Packard, 69 Me. 8 Reporter 590. 
 
ONUS PROBANDI. 61 
 
 , § "20. But although the law never presumes ^uilt and fraud in 
 the first instance, yet it is held, that where a homicide has once 
 been pi'oved, the law will presume that it was done maliciously, 
 (1) and casts on the party accused the onus of proving either his 
 complete justification or excuse, or such palliating circumstances 
 as may reduce the ofifenceto manslaughter, (a) (2). Audit is laid 
 down as a n>axim, "Qui semel est malus, semper prsesumitur esse 
 malus in eodem genere," (3) {b), and as a general principle which 
 
 (a) Forster's C. L. 255. (6) 2 Stark. Ev. 687. 
 
 1. "While the law implies malice on the proof of voluntary homidde, it 
 does not impute "express" malice. Tarrer vs. State, 42 Tex. 212. "Express 
 malice," which is the essential constituent of murder in the first degree, is never 
 inferred or implied alone from the act done or the means used in doing it, it must 
 be proved aliunde, like any other fact in the case, by such evidence as to satisfy 
 and convince the jury of its existence, Kicharte vs. the State, Tex. Feb. 67, 1879, 
 
 8 Kep't'r 63 ; and the rule that a man is to be taken to have intended the prob- 
 able results of his own acts, is, at most, but a rule of evidence to be applied by 
 the triers in inquiring into the intent, and is never a rule of law, Qnincbaug Bk. 
 vs. Brewster, 30 Conn. 599 ; State vs. Patterson, 4.i Yt. 308. 
 
 2. All murdei'S are presumed by law to be murder in the second degixv. In 
 order to elevate the offence to murder in the first degree, the onus prohaiuli is 
 on the prosecution, and to reduce the offence to manslaughter the onus is on the 
 prisoner, Willi.^ vs. the Com., Va. Nov. 1879, 9 Eept'r 1,57. 
 
 Voluntary immediate drunkenness is inadmissable to disprove malice, or to re- 
 duce offence to manslaughter ; Id. Com. vs. Jones, 1 Leigh 612 ; Pirtlc vs. State, 
 
 9 Humph 664; Swan vs. State, 4 ib, 136 ; Bos well vs. Com. 20 Gratt. 860. 
 
 3. General or continuing insanity having been shown within a rc'asouable time 
 before that, the burden is thrown upon the other party to show a lucid interval 
 
 But that all things have been solemly done in courts only applies when juris- 
 diction is clearly vested, Pittsburg vs. Walters, 69 Pa. 395 ; Alien vs. Sowerby, 
 37 Md. 410; Hicks vs. Hayward, 4 Heisk. 598 ; Buchannan vs. King, 22 Gratt. 
 414; Markman vs Boyd, Id. 544 ; and when a summary proceeding is given by 
 statute and in derogation of common law, the necessary jurisdiction must appeai- 
 affirmatively on the face of the record on the proceeding by void, Graver vs. Fell, 
 7 W. Notes Cas. No. 27 (Pa.) 1 Barr. 126 ; and certiorari can be taken at any 
 time if the proceedings are coram non judice, independent of limitation law. Id. 
 7 Harris 495 ; 1 Ash. 230 ; but if the court have competerit jurisdiction, a proper 
 writ will be deemed to have issued, Corry vs. Miller. E. I., May 3^ 1879 ;, w Repor- 
 ter 698 ; Gosset vs. Howard, 10 Q. B. 411, 453. 
 
62 ONUS PROBANDI. 
 
 is very extensively acted on, that "omnia praesumuntur contra 
 spoliatorem," (1) (c). 
 
 (c) 1 Staik. Ev. 500. 
 1 . When testimony has been mutilated, suppressed or destroyed, the party so 
 mutilating, if he would make use of it, must show that the original character of 
 the testimony was not thereby affected, Joannes vs. Bennett, 5 Allen 169 ; Gar- 
 diner vs. Peop. 6 Park. C. R. 156 ; Blake vs. Fish, 44 111, 302 ; Shields vs. "West, 
 17 Cal. 324 ; State vs. Knapp, 45 N. H., 148 ; or that among the several probable 
 interpretations of the instrument that which is most , unfavorable to him will be 
 adopted, Haldane vs. Harvey, 4 Burr, 2484 ; K. vs. Arundel Hob. 109 ; White vs^ 
 Lincoln, 8 Yes. 363 ; McDonough vs. O'Neil, 11 3 Mass. 92 ; Merwin vs. Ward, 
 15 Coun., 377 ; Little vs Marsh, 2 Ired. Eq. 18, — so there is a presumption against 
 all forms of attempted suppression of, or tampering with, evidence Moriar vs. R. 
 E. L. R. 5 Q. B., 314 ; Carlewis vs. Cerfield, 1 Q. B., 814 ; Bell vs. Frankis, 4 M. 
 & Gr., 446 ; Thayer vs. Stearns, 1 Pick. 109 ; Grimes vs. Kimball, 3 Allen, 518 ; 
 Peop. vs. Rathburn, 21 Weud. 509 ; Meyer vs. Barker 6 Binn., 228 ; Reed vs. 
 Dickey, 1 Watts., 152 ; Page vs. Stephens, 23 Mich., 357 ; Peop. vs. Marion, 
 29 Mich. 31 ; Winchell vs. Edwards, 57 111. 41, — as when a finder of a lost jewel, 
 refuses to produce it, — the inference is that it is a jewel of the highest probable 
 value, Armony vs. Delamarie, 1 Str. 505, 1 Sm. L. C. 301 ; Mortimer vs. Orad- 
 dock, 7 Jur. 45, — so if an accounting party parts with or destroys his books, the 
 strongest inferences, consistent with the rest of the case will be made, against him, 
 Gray vs. Haig, 20 Beav. 231, — and a destruction of a contract by one claiming 
 under it, after he knows there is to be a difficulty about it, is strong presumptive 
 evidence that its terms were unfavorable to his claims, Warner vs. Crew., 22 Iowa 
 315 ; but there is no such presumption when a party is prevented from producing 
 goods by causes in no way implying dishonesty, but merely negligence, Olaunes 
 vs. Perry, 1 Camp. 8, Lord Mansfield observed in Blatch vs. Archer, Cowp. 65, 
 that " it is certainly a maxim that all evidence is to be weighed according to the 
 proof which it was in the power of one side to have produced, and in the power 
 of the other to have contradicted. Wallace vs. Harris, 32 Mich. 394, — and in 
 general, neglect to produce evidence or a witness known to be in one's power is 
 suspicious and thus evidence against him, Williams vs. Com, Pa. Feb. 2, 1880, 9 
 Reporter 453 ; Fowler vs. Sergeant, 1 Grant Pa. 358, & 121 ; or declining to tes- 
 tify ill one's own behalf upon what he knows pertinent to the case is a circum- 
 stance for the jury ; Jackson vs. Blanton, 58 Tenn. 63 ; when the burden is thrown 
 
 at the time of the act, Dicken vs. Johnson, 7 Geo. 488, — evidence of the cessation 
 of the symptoms is not enough, but there must be evidence of sufficient restora- 
 tion to act intelligently and freely, Lucas vs. Parsons, 27 id. 593 ; Boyd vs. Eby, 
 8 Watts. 66, ex parte Holyland, 11 ves. 10. 
 
ONUS PROBAND!. 63 
 
 Many strong presumptions of law are founded on the known 
 and ordinary course of nature, (1) thus the law will not pre-sup- 
 
 1. As that the shock produced by the meeting of a raih-oad train, upon encoun- 
 tering an obstruction, is in proportion to momentum, R. vs. Paryeter, 3 Cox. C. 
 Q. 191 ; Caswell vs. R. R., 98 Mass. 194 ; Wilds vs. R. R., 29 N. Y. 315 ; Joues 
 Ts. R. R. 67 N. C. 125 — so in regard to the revolution of the seasons and the ordi- 
 nary laws of vegetables and animals, Patterson vs. McCausland, 3 Bland (Md.) 69. 
 But sequences and occurrences must be unvarying ; vicissitudes of climate and 
 seasons must be proved, Dickson vs. Nichols, 39 111. 372 ; magnetic variations, 
 Bryan vs. Beckley, 6 Lytt. (Ky.) 109 ; that animals will act according to their 
 nature, Carlton vs. Hescock, 107 Mass. 410 ; Rowe vs. Bird, 48 Vt. 578 ; that 
 horses will take fright at extraordinary noises and sights, Lake vs. Milliken, 62 
 Me. 240 ; Jones vs. R. R., 107 Mass. 261 ; Judd vs. Fargo, id. 265 ; Peop. vs. 
 Cunningham, 1 Deuio 524; Congreve vs. Morgan, 18 N. Y. 84; Moreland vs. 
 Mitchell Co., 40 Iowa 394 ; but when the burden is ou the party to prove a scienter 
 «u the owner of a michievous animal, it is admissible to put in evidence particu- 
 lar facts. Worth vs. Gilling L. R. Q. C. P. 1 ; Judge vs. Cox, 1 Stark. R. 285 ; 
 Kittridge, vs. Ellott, 16 N. H. 77 ; Whikier vs. Franklin, 46 N. H. 23 ; Arnold 
 TS. Norton, 25 Conn. 92 ; Buckley vs. Leonard, 4 Denio 500 ; as well as general 
 reputation, Whart. on Neg., I 924 ; that certain kinds of dogs will worry sheep, 
 Reed vs. Edwards, 17 C. B. N. S. 245 ; Marsh vs. Jones, 21 Yt. 378; Wolf vs. 
 Chalker, 31 Conn. 121 ; Swift vs. Appleton, 23 Mich. 252 ; but the habits or 
 
 en the defendant by law and not otherwise ; Chaffer & Co. vs. U. S., 18 AVall. 
 545 ; Anderson vs. Russell, 34 Mich. 109 ; Com. vs. Hardiman, 9 Gray, 136, 
 Gragg vs. Wagner, 77 N. C. 246. So in Piatt et als vs. Piatt, 58 N. Y. 648. 
 "It appeared upon the trial that defendant had certain books of the partnership 
 business which he refused to produce when required by the court so to do. Plain- 
 tiffs were permitted to ask a witness acquainted with the kind of business carried 
 on, how much capital it would take to carry on the business of the partnership. 
 A witness for defendant was asked the same question. This was objected to upon 
 the ground that the books should be produced, and objection sustained. Held, 
 no error ; that for the contumacy ot defendant in refusing to produce the books 
 the court had the right to prevent him from meeting the secondary proof of 
 plaintiffs with like proof." Citing Bogart vs. Brown, 9 Pick. 18— wherein Wor- 
 ton, J., says : " The defendant had the original in his possession, which he refused 
 to produce. Upon what ground can he now pretend that this secondary evidence 
 ought to be used by the party who withholds the primary ? To permit it would 
 be to overturn obvious and well-settled principles of law, and to encourage 
 unworthy artifices." But no presumption will indulge against a party for 
 failing to call his opponent as a witness, Bleeker vs. Johnson, 69 N. Y. 309. 
 
64: ONUS PROBAND!. 
 
 pose idiotcy, (1) and never in the case of any individual presumes 
 *20 a deficiency of those natural powers, or capabilities *of mind 
 or body, which are incident to the human race in general, (2). 
 Thus, it never presumes insanity, (3) (<^), or the absence of the 
 powers of generation in the one sex, or sterility in the other, 
 or want of common sense and understanding :(e) and in fur- 
 therance of this lays down as a principle, that every person must 
 
 (d) 1 H. p. C. 33. (e) Hub. Pioel. J. C. lib. 22. lit. 3. 
 
 1. The presumption is that every person is capable of asserting his rights- 
 disability must be asserted and proved, Palmer vs. Wright, 58 Ind. 486. 
 
 2. The burden of proving insanity is upon the one who alleges it, State vs. 
 Brown, 12 Minn. 538, and evidence of insanity is not necessary lo be given in the 
 first instauce from the prosecution in criminal cases, U. S. vs. Lawrence, 4 Cr. C. 
 C. 514 ; U. S. vs. McClue, 1 Curt, 1 ; O'Brien vs. People, 48 Barb. 274. 
 
 3. That an intestate has left heirs is a presumption so violent that it must be 
 repelled by proof, Harvey vs. Thornton, 14 111. 21 7 ; Hays vs. Gribble, 3 B. Mon. 
 106; Schuchfield vs. Emmerson, 52 Me.. 465 ; Thomas vs. Frederick Co. School, 
 7 Gill and J. 369 ; but some authoritJes-assert thateis no presumption but burden 
 of proof, Emerson vs. White, 29 N. H. 482. 
 
 temper of a single one of a species is presumed from the habits of the genus, not 
 the habits of the genus from individual species, (Collins vs. Dorchester, 6 Cush. 
 396 ; Hawks vs. Clearleraont, 11 Mass. 110. 
 
 It will be presumed that persons will be passing in a thoroughfare hi such num- 
 bers as to make it dangerous to discharge at random a gun towards such thorough- 
 fare, Peop. vs. Puller, 2 Park C. R. 16 ; Triscol vs. Newark. Co., 37 N. Y. 673 : 
 Sparks vs Com., 3 Bush. Ill ; State vs. Vance, 17 Iowa 138 ; Bizzell vs. Booker, 
 16 Ark. 308 ; that a sudden alarm, resulting in injury, will be produced by a shock 
 of any kind given to a crowd, Scott vs. Shepherd, 2 W. Black. 892 ; Guelle vs. 
 Swan, 19 Johns. 381 ; Fairbanks vs. Kerr, 70 Pa. 86 ; and that persons in a fright 
 will act instinctively and convulsively, R. vs. Pitts, C. & M. 284 ; Sears vs. Den- 
 nis, 105 Mass. 310 ; Coulter vs. Exp. Co., 5 Lans. 67 ; Buel vs. R. R., 31 N. Y. 
 314 ; Frink vs. Potter, 17 111. 406 ; Greenleaf vs. R. R., 29 Iowa 47. 
 
 The courts will recognize judicially matters of public history affecting the whole 
 people, Payne vs. Treadwell, 16 Call. 220 ; Hart vs. Bodley, Hard. (Ky.) 98 ; 
 Bell vs. Burnett, 2 J. J. Marsh. 516 ; but not of facts of recent occurrence, relat- 
 ing to a particular section of the country only, Mori-is vs. Edwards, 0. 189, and 
 the jury must not be left to their own information on the subject, Gregory vs. 
 Baugh, 4Rand. Ya. 611 ; McKinnon vs. Bliss, 21 N. Y. 206, as the depreciation 
 of the currency during the rebellion, Modawell vs. Holmes, 40 Ala. 391. 
 
ONUS PROBANDI. 65 
 
 be presumed to have intended the natural consequences of any (1) 
 act which he may have deliberately done, (/). Also, matters tend- 
 ins; to vitiate a contract will not be presumed, nor any inca- 
 pacity in either of the parties to contract ; such an infancy, lun- 
 acy, coverture, and such like. And in the case of infants under 
 seven, the law presumes that they are ''doli incapaces," and inca- 
 pable of distinguishing between right and wrong, at least when 
 charged with felony, (2) {g). 
 
 § 21. Once the existence of a particular state of things have 
 been proved, the law will, in the absence of evidence to the con- 
 trary, presume its continuance, (3). Thus an individual who i» 
 
 (/) 1 stark. Ev. 1254. (g) 1 H. P. C. 25. 
 
 1. As that a person is presumed to know the legal effect of his contract, Mears. 
 vs. Graham, 8 Blackf. 144 ; even if he cannot read or write, Harris vi.. Story. 2 
 E. D. Sm. 363 ; Andrascoggin Bank vs. Kimbal, 10 Cush. 373. 
 
 2. This presumption is irrebuttable, State vs. Goin, 9 Humph. 17.") ; Godfrey 
 vs. 'State, 31 Ala., 323; E. vs. Owen, 4 C. & P. 23(i ; between seven and 
 fourteen the presumption is rebuttable by proof that the defendant is capable of 
 crime. Com. vs. Mead, 10 Allen 398 ; 1 Green Cr. E. 402 ; E. vs. Smith, 1 Co.x. 
 C. C. 260 ; a boy under fourteen is incapable of rape, as principal in the first 
 degree, E. vs. Phillips, 8 C. & P. 736 ; E. vs. Jordan. 9 C. & P. 118 ; 1 Green 
 Cr. E. 402 ; and this applies to the act of carnally abusing a girl under ten years 
 of age, E. vs. Jordan, supra ; hence, an action for false imprisonment lies for the 
 arrest of such an infant under charge of felony. Mash vs. Loader, 14 C. B. N. S. 
 .535 ; so they cannot be convicted with an assault with intent to ravish, E. vs. 
 Eldershaw, 3 C. & P. 396 ; E. vs. Phillips, 8 C. & P. 736. 
 
 3. Until some change is shown to have occurred, Eanies vs. Eames, 41 X. H. 
 177 ; Montgomery Plank Eoad Co. vs. Webb, 27 Ala. 618 ; Sullivan vs. Gold- 
 man, 19 La. Ann. 12 ; Mullen vs. Pryor, 12 Mo. 307 ; Leport vs. Todd, 32 N. J. 
 L. 124; people vs. McLeod, 1 Hill 377; Hood vs. Huod, 2 Grant (Pa.) 229; 
 Brown vs. Burnham, 28 Me. 38 ; Brown vs. King, 5 Mete. 173 ; O'Neil vs. N. Y. 
 Mining Co., 3 Nev. 141 ; Bell vs. Young, 1 Grant (Pa.) 175 ; Farr vs. Payne, 
 40 Vt. 615 ; the burden is on the purchaser to show a loss or waver of the vend- 
 or's lien. Hays vs. Horin, 12 Iowa 61 ; the continuance of a debt will be presumed 
 till payment be shown, Jackson vs. Irvin, 2 Camp 50 ; so a continuance of resi- 
 dence in a particular place. Church vs. Eowell, 49 Me. 367 ; Littlefield vs. 
 Brooks, 50 id. 475 ; Shaw vs. Shaw, 78 Mass. 158 ; Goldie vs. McDonald, 78 IlL 
 605 ; and Hunt, C, in Wilkins vs. Earle, 44 N. Y. ] 72, says : " A partnershii> 
 once established is presumed to continue. Life is presumed to exist. Possession, 
 
■66 ONUS PROBANDI. 
 
 once proved to have existed, vs^ill be presumed to be still alive, (a) 
 unless the contrary is shown either by direct or presumptive evi- 
 <lence. And although, as has been already observed, the law 
 never presumes insanity, yet that a general state of mind in a par- 
 ticular person once proved, it lies on a party who asserts the pa- 
 tient to have been in a lucid interval at a particular subsequent 
 jDeriod, to prove his assertion, (1) (b). 
 
 § 22. Several presumptions of law are based on principles of 
 public policy and convenience. (2) Thus it is always presumed 
 
 (a) 3 stark. Ev. 1120; Throgmorton vs. (6) 3 Stai'k. Ev.l703. 
 
 Walter, 2 Rol. R. 461 ; Wilson v. Hodges, 2 
 East 312. 
 
 1. A person proved to have been insane at any time is presumed to remain so 
 nntil the contrary is proved, Sprague vs. Duel, 1 Clark Ch. 90 ; Saxon vs. White- 
 acre, 30 Ala. 237 ; Breed vs. Pratt, 18 Pick. 115 ; Ballew vs. Clark, 2 Ired. (N. 
 C.) L. 23 ; Tellew vs. Tellew, 54 Pa. 216 ; Ripley vs. Babcock, 13 Wis. 425 ; but 
 this presumption does not obtain when insanity is proved to be caused by violent 
 
 \lisease, Hix vs. Whettemore, 4 Mete. 545. ^ 
 
 The general competence of the testator not being questioned, the burden of 
 proving incompetency at the time the will was executed is on the contestant, and 
 •affirmative proof is necessary, Allen vs. Pub. Adm., 1 Bradf. 378 ; Phelps vs. 
 Hartwell, 1 Mass. 71 ; Hubbard vs. Hubbard, 6 Mass. 397 ; Singleton's Will, 8 
 Dana 315. But see Crowningshicld vs. Crowningshield, 2 Gray 524; Horn vs. 
 Pullman, 72 N. Y. 269. 
 
 2. It is clearly against the policy of the law to let an interested person sit as 
 judge or juror, Rail R. Co. vs. Barnes, 40 Mich.; that the law of another State 
 is the same as the law of the former. First Nat. Bank vs. Fourth National Bank, 
 77 N. Y. 320; that premiums have been paid on a policy rather than lapse. Her. 
 
 is presumed to continue. The fact that a man was a gambler twenty months 
 since justifies the presumption that he continues to be one. An adulterous inter- 
 <-ourse is presumed to continue. So of ownership and non-residence, Walrod vs. 
 Ball, 9 Barb. 271 ; Cooper vs. Dedrick, 22 ib. 516 ; Smith vs. Smith, 4 Paige 
 432 ; McMahon vs. Harrison, 2 Seld. 443 ; Sleeper vs. Van Middlesworth, 4 
 Denio 431 ; Nixon vs. Palmer, 10 Barb. 175. This analogy is fairly applicable 
 to the present case, and justifies the admission of this evidence," 7 Q. B. 158. 
 More than fifteen years occupation without demand of rent will authorize a pre- 
 .^umption of a life estate, Selleck vs. Starr, 5 Vt. 255. An owner of land in 
 possession is presumed to hold under his fee until it is shown that he holds under 
 an estate adverse and not subordinate to his fee, Tenney vs. Wolston, 41 111. 215. 
 
ONUS PROBANDI. 67 
 
 that a bill of exchange was passed to the holder for good consid- 
 eration, (1) (a). And a deed thirty years old, which has beeisi 
 
 (a) 3 Bl. Com. «5; MiHs vs. Barber, 1 Mees & W. 425. 
 1. The giving a note will be intended to have been given for a balanco due, 
 Defreest vs. Bloomingdale, .5 Denio 304; Lake vs. Tvson, 6 X. Y. 461 ; that 
 
 Life Ins. Co. vs. Brinker, 77 N. Y. 435 ; not that paj-ments made by a bank arc 
 made by mistake, even when the account of the party for whom they are madc- 
 is not good, Whiting et als. vs. Oity Bank, 77 N. Y. 367 ; State vs. Eadowitz, 8 
 Reporter 263 ; and the defence of mistake is an affirmative one, Meyer vs. Ijath- 
 rop, 73 X. Y. 322 ; that a joint and several note, signed by three, with the word 
 surety added to the end of the last, 'the last is prima facie surety for the other 
 two, 73 X. Y. 552 ; that a note made by firm name, by one partner, was used in 
 the firm business, First X"at. Bank vs. Morgan, 72 X. Y. 593 ; that servants iit 
 charge are servants of the R. R. Co., Thorpe vs. X. Y. C. & H. R. R. R. Co., 77 
 X. Y. 402 ; that payments made on an open running account are presumably to- 
 be applied to the extinguishment of the items in the order of their dates. Post- 
 master General vs. Farlen, 4 Mason 333 ; U. S. vs. A\"ardwell, 5 ib. 82 ; U. S. vs. 
 Kirkpatrick, 9 Wheat. 738 ; Jones vs. U. S., 7 How. 681 ; but where the earlier- 
 items of account are secured by mortgage, and the later items unsecured, pay- 
 ments made after the expiration of the time for payment mentioned in the mort- 
 gage should be applied to the unsecured amount. Field vs. Holland, 6 (^ranch. 8 -. 
 Schuelenburg vs. Martin, 10 Reporter 230 — provided, of course, no application 
 be made by the parties. 
 
 It is presumed that a man had adopted or accepted an advantageous act, offer,, 
 gift, bequest, devise or conveyance, &c., until his positive disol.iimer is shown, as. 
 when elected a trustee of a corporation, his acceptance will be presumed — that 
 he has adopted an advantageous act done by another as his assumed agent,. 
 Bailey vs. Culverwell, 8 Bar. & C. 448 ; that a widow has adopted and advan- 
 tageous testamentory provision in lien of dower, Merrill vs. Emery, 10 Pick. 507r 
 the benefits should appear clear and unequivocal, Russel vs. Woodward, Id 408 ;: 
 because men are presumed to act according to their own interest, 1 Ves., Jr., 227 ; 
 Amesburg vs. Brown, 1 Ves., Sen., 480; Forbes vs. M.offatt, 18 Yes., Jr., 384j^ 
 as where the equity of redemption was devised to the mortgage, it was held that 
 this union of estates should extinguish the mortgage, if that result would be 
 indifferent to the devisee, otherwise if he had an interest to keep it on foot — and 
 so of other like cases, Forbes vs. Moffat, 18 Ves. 384 ; Gibson vs. Crehore, fi 
 Pick. 146 ; Freeman vs. Paul, 3 Greenl. 260 ; Starr vs. Ellis, 6 Johns, ch. 393 ; 
 Mills vs. Comstock, 5 Id. 214 ; prima facie it was an extinguishment, and the- 
 one who pays must show that his interest was to bave the mortgage kept on foot 
 Gardiner vs. Astor, 3 Johns. Ch. 53 ; Burnett vs. Dennistown, 5 Id. lio ; Stan- 
 vs. Ellis, 6 Id. '393 ; James vs. Morey, 2 Cow. 246. 
 
€8 ONUS PROBANDI. 
 
 *21 ^brought from an unsuspected repository, will be presumed 
 to have been duly executed, so as to supersede the necessity of 
 •calling the attesting witnes8.(!l ){b) 
 
 (6) 1 Phil. Ev. 458. 
 1 . In ejectment, the missing linli in the plaintiff's title will not be be presumed 
 
 to exist, unless some act of ownership is shown for a sufficient length of time by 
 
 the party to whom, in such evidence, the missing link would be presumed to have 
 
 been made, Warner vs. Henby, 48 Pa. 187. 
 
 €very presumption will be made against the purchaser of an over-due note, John- 
 son vs. Bloodgood, 2 Cai. Gas. 303 ; 1 Johns. Cas. 51 ; that the acceptor of a bill 
 has funds of the drawer in his hands ; and in an action against the acceptor, the 
 burden of disproving the presumption rests upon him. When the presumption is 
 not repelled, the drawer of the bill stands in the same relation to the acceptor as 
 the endorser of a promissory note to the maker. The acceptor is the principal 
 debtor — the drawer his surety, mei-ely, At. F. & M. Ins. Co. vs. Bois. 6' Duer 583, 
 and when bona fi(h;s, by legal presumption or proof is established, it can be over- 
 come only by allegation and proof of bad faith affirmatively — the purchaser for 
 value of stolen negotiable securities will be protected, unless the circumstances 
 are such that an inference can fairly and legitimately be drawn that the purchase 
 ■\vas made in bad faith or with notice of defective title in the seller ; to defeat his 
 title it is not sufficient to show that a prudent man would have been put upon 
 inquiry, or that he was negligent or did not exert a proper degree of caution, 
 Duch. Co. Mut. Ins. Co. vs. Hatchfield, '73 N. Y. 226 ; City of Eliz. vs. Force, 2 
 Stew. 590 ; Carpenter vs. Eommel, 5 Phil. 34 ; Spooner vs. Holmes, 102 Mass. 
 iiOo ; if the instrument is incomplete, as if any essential part is in blank, and if 
 aftewards filled up by the thief, or holder through the thief, no recovery can be 
 had, Ledwich vs. McKim, 53 N. Y. 308 ; Jackson vs. Vicksburg Co., 2 Woods. 
 141 ; but the insertion of the name of a payee in blank left for that purpose, is 
 not such an alteration as will avoid the bond, Boyd vs. Kennedy, 9 Vr. 146 ; 
 Dutchess Co. Ins. Co. vs. Hatchfield, 1 Hun. (N. Y.) 673, because its negotiability 
 is not thereby affected. Smith vs. County, 54 Mo. 58 ; and the sames applies to 
 coupons, McCoy vs. Washington Co., 3 Wall. Jr., 381. But in an ordinary non- 
 negotiable bond, an obligee is just as essential as an obligor, Pelham vs. Grio-o-s. 
 4 Ark. 141 ; Phelps vs. Call, 7 Ired. 262 ; Marth vs. Brooks, 11 Ired. 409 ; Kemp 
 vs. M cGuigan, Tapp (0)50. But if overdue bonds or coupons are stolen, and then 
 come into a bona fide holder's hands, he cannot collect their amount, Arents vs. 
 Com., 18 Graft. 750 ; First Xat. Bank vs. Com., 14 Minn. 77 ; Belo vs. Forsythe, 
 76 X. C. 489 ; Vermilge vs. Adams Ex. Co., 21 Wall. 138 ; a blank as to date 
 would not effect a recovery, Pierce vs. Richardson, 37 N. H. 306 ; Fournier vs 
 Cyr., 64 Me. 32 ; Whiting vs. Daniel, 1 Hen. & Mun. 391 ; Bills vs. Stanton. 69 
 111. 51 ; as delivery will be presumed to have beem immediately at the makino- 
 Peaslv vs. Robins, 3 Mete. 164. 
 
ONUS PROBANDI. 69 
 
 Some are founded on the ordinary conduct of mankind. Thus, 
 if an individual goes abroad, and is not heard of for seven years, 
 (1) his death will be presumed, because it is probable that if still 
 in existence some news or account of him would have reached 
 his friends, (e). There are a great many presumptions of mixed 
 law and fact based on this principle. 
 
 § 23. Sometimes a party, by his own act or conduct, raises a 
 presumption against himself ; or to speak more correctly, deprives 
 himself of the advantage of taking a particular objection, which 
 may in itself be well founded.(2) Thus in Wilson vs. Hobday, (a) 
 which was an action of debt on a replevin bond, where the dec- 
 laration stated a distress which had been made by the plaintiflEs 
 within the jurisdiction of the mayor of C, on the goods of W. 
 H., who, having made a plaint to said mayor, the latter took the 
 replevin bond from the defendant, on which the action was 
 brought ; and it was held by the court that as the defendant had 
 the benefit of the replevin, and had executed the bond, it should 
 
 (c) Doe vs. Jesson, ti East 85 ; HopeweU (a) 4 M. & S. 125; StepU. on PI. 400. 
 vs. De Pinna. 
 
 1. The presumption of the coutinuauce of life prevails up to the end of the 
 seven years since last heard from by his friends, and that he died at that precise 
 time and not sooner, Clark vs. Canfield, 15 X. J. Eq. 119 ; Mofifet vs. Varden, 5 
 Cr. C. C. 658 ; Whitney vs. Nichols, 46 111. 230 ; and when such person is proved 
 to have been living within seven years, the burden of proving his death lies upon 
 the party who asserts it, Galilland vs. Martin, 3 Mcljoan 490 ; Ashbury vs. San- 
 ders, 8 Cal. 62 ; the presumption of death from e.xtreme old age, even up to one 
 hundred years is not conclusive, Burney vs. Ball, 24 Ga. 505. 
 
 The better opinion now is, there is no presumption in law of survivorship in 
 case of persons who perish by a common disaster. One who claims through sur- 
 vivorship must prove it, Newell et als. vs. Nichols et. al., 75 N. Y. 79 ; Kans. 
 Pac. E. R. Co. vs. Miller, 2 Col. T. 442 ; Hmith vs. Croom, 7 Fla. 81. 
 
 2. So, if a party accept a deed with inherent covenants, he is bound, though 
 he neither signs or seals, Shep, T. 177 ; and an indenture of bargain and sale pur- 
 porting to be inter partes, by which an estate is conveyed to the gi-antee, if he 
 accept the deed and the estate conveyed, although he do not sign and seal, it is 
 just as much his deed as that of the grantor, Finley vs. Simpson, 2 Zab. 331 ; 
 Baniett vs. Lynch, 5 B. & Cr. 589. 
 
70 ONUS PROBANDI. 
 
 be presumed as against hira, that a custom existed for the mayor 
 of that place to grant replevins.(l) 
 
 § 24. In the cases we have hitherto been considering, the 
 pleading of one only of the litigant jiarties had a presumption of 
 law in favor of the truth of the facts alleged in it. It, however, 
 sometimes happens that the pleading of each party has a legal 
 presumption in favor of its truth ;(2) and when this is the case it 
 becomes a question of considerable difficulty to determine which 
 of the two conflicting presumptions is entitled to the precedence, 
 *22 and by *being considered the strongest, casts the onus pro-' 
 bandi on the party whose pleading is only fortified by the weaker 
 one. Thus if a man charged with an indictable ofi'ence plead 
 
 1 . Those who execute an undertaking are estopped from contradictiug its 
 recitals to defeat the instrument, Coleman vs. Bean, 14 Abb. Pr. 38 ; Waymaa 
 vs. Taylor, 1 Dana 257 ; Bronson vs. Taylor, 33 Conn. 116 ; so where a written. 
 contract is relied upon in the pleadings of both parties ; it does not rest with the 
 defendants to object to its admission in evidence. Reed vs. Phelps, 5 111. 39, it is 
 available as an admission without being produced, M'Gowan vs. Smith, 36 L. J. 
 Ch. 8 ; Lett vs. Morris, 4 Sim. 607 ; so the production of the note, on the part of 
 the plaintiff, is not necessary where it is not denied on the record, Cannan et als. 
 Farmer, 2 C. & K. 747. An admission in the pleading estops the party making 
 it, but an admission in one count or plea does not conclude the party upon any 
 other count or plea. Hall vs. Clements, 41 N. H. 166 ; Bartlett vs. Prescott, Id. 
 493 ; Jackson vs. Bank of Marietta, 9 Leigh, 240 ; Nadenbousch vs. Sharer, 2 
 W. Va. 285 ; and if a written contract contain various undertakings, the plaint- 
 iff may complain of the breach of one or of all — but if he confine himself to one. 
 he admits the performance of the others, Chinn vs. Hamilton, 1 Hemst. 438 ; so 
 if secondary evidence be offered, neither party "will afterwards be heard to com- 
 plain. 
 
 2. (See J 5, N. 1.) If an allegation contains full and complete averments of 
 remediable right and liability, there will be a legal and conclusive presumption, 
 in its favor until it is put in issue. If it is not denied, the presumptions of law- 
 asserts that it is sufficiently proved. Summons vs. Jenkins, 76 111. 482 ; Briggs vs. 
 Dorr, 19 Johns. 95 ; Jack vs. Martin, 12 Wend, 316 ; Raymond vs. Wheeler 9 
 Cow. 295 ; nor will its existence be suffered to be denied, Robbins vs. Codman 4 
 E. D. Sm. 325 ; Page vs. Willets, 38 N. Y. 31 ; Ridgway vs. Longacre, 18 Pa. 
 215 ; Thatcher vs. Hunn, 12 Iowa 303 ; and he cannot be nonsuited where the 
 issue is on the defendant, Newhall vs. Holt, 6 M. & W. 662, if the plaintiff 
 appear,' Symes vs. Larby, 2 C. & P. 258. 
 
ONUS I'ROBANDI. 71 
 
 insanity at tiie time of its commission, althougli here the law 
 would prima facie presume his innocence of the offence charged, 
 yet, on the other hand, as it always presumes sanity of mind in 
 every individual till the contrary be shown, here is a case where 
 two presumptions conflict. The latter, however, preponderates, 
 and it clearly lies on the party accused to make out the fact of 
 insanity, because the presumption against him is one founded on 
 the ordinary and established course of nature ; whereas the pre- 
 sumption of innocence, although a just and proper one, is a mere 
 creature, and, in many instances, a mere fiction of law.(l) 
 
 § 25. Again, where a female had been married about seven 
 years ; and a few months after the marriage her husband enlisted 
 as a soldier, went abroad on foreign service, and had never since 
 been heard of; and she, about twelve months after his departure, 
 married another person by whom she had issue : it was held by 
 the Court of King's Bench, on a case reserved from the sessions, 
 that the issue were to be deemed legitimate ;(2) for, although the 
 
 1. Proof bej-ond a reasonable doubt is necessary to establish a fact against a 
 prisoner, and preponderating proof is sufficient to establish a fact in his favor, 
 Peop. vs. Melgate, 5 Cal. 127 ; Warden vs. State, 18 Ua. 264; and prepoiider- 
 ance of evidence is sufficient to establish the defence of insanity, State vs. Rede 
 meier, Mo., 1880, 10 Reporter 272. So it will be seen that the presumption of 
 innocence is not a mere " fiction of law." Proof beyond reasonable doubt is 
 the language of the courts. But this does not mean that preponderance only of 
 testimony is required. Presumptions, also, must be taken into view. The 
 evidence of guilt must preponderate over both the testimony to and the pre- 
 sumption of innocence, Jones vs. Greaves, 26 Oh. State 2; Bttr vs. Wilson, 22 
 Minn 206 ; Werton vs. Uravlin, 49 Vt. 507. 
 
 2. It is submitted this is not the law. The question of the bigamous guilt or 
 innocence was not directly involved, but a civil issue of legitimacy of the issue of 
 the second marriage. The issue of the second marriage might be illegimate, and 
 the mother referred to in the text not be guilty of bigamy. The court say, in 
 Squire vs. State, 46 Ind. 4.59, that " it is proper to charge the jury that if they 
 believe, from the evidence, that the defendant had been informed that his wife 
 had been divorced, and that he had used due care and made due inquiry to ascer- 
 tain the tAith, and had, considering all the circumstances, reason to believe and 
 did believe, at the time of his second marriage, that his former wife had been 
 divorced from him, then they should find for the defendant." As to the presump- 
 
 6 
 
72 ONUS PROBANDI. 
 
 law will in general presume that a party once proved to have 
 been alive continues so until seven years elapse without any 
 account from him,(l) yet where the consequence of making that 
 presumption would be to presume another person guilty of felony, 
 (viz., bigamy, as in this case,) the law will presume his death to 
 have taken place sooner ; and that as the presumption of the 
 duration of life clashed with that general presumption of inno- 
 cence, to the benefit of which every one is entitled, the former 
 
 1. Chancellor Green, in Clark vs. Canfield, 2 McCarter (N. J.) 119, cited 
 supra, seems to present the law : " The real question is not whether the statue 
 presents any evidence of the precise time of dsath, but whether it furnishes any 
 evidence of the occurrence of death before the end of the seven years. If 
 it does not, the presumption of life continues, by well-settled rules of evidence, 
 independent of the statute. The presumption of death, which arises upon the 
 expiration of the seventh year, cannot opera;te retrospectively, Whitney vs. 
 Nichols, 46 111. 230 ; and when such person is proved to have been living within 
 seven years, the burden of proving his death lies upon the party who asserts it, 
 Galilland vs. Martin, 3 McLean 490 ; Asbury vs. Sanders, 8 Cal. 62. The pre- 
 sumption of death from extreme old age, even up to one hundred years, is not 
 conclusive, Burney vs. Ball, 24 Ga. 50.5. 
 
 The better opinion now is, there is no presumption in law of survivorship in 
 case of persons who perish by a common disaster. One who claims through sur- 
 vivorship must prove it, Newell et als. vs. Nichols etal.. To N. Y. 79; Kans. 
 Pao. R. E. Co. vs. Miller, 2 Col. T. 442 ; Smith vs. Croom, 7 Fla. 81. 
 
 tion of legitimacy and the presumption of the continuance of life up to the end 
 of the seven years of absence and unheard of, the court say, in Murry vs. Murrj'. 
 6 Oreg. 17 : " Where a husband had been absent for three years, and information 
 was received by his wife that he was deal, and she thereafter married again, 
 before the expiration of seven years from his departure — held, in a suit involving 
 the legitimacy of her children by the second marriage, that the question of her 
 being at liberty to make the second marriage was not governed by the presump- 
 tion of innocence, but was to be determined by the jury in view of all the cir- 
 cumstances." And the court say, in Squire vs. State, supra : " In a prosecu- 
 tion for bigamy, the State must prove, beyond a reasonable doubt, that the 
 first wife was living at the time of the second marriage. Where there is no direct 
 evidence on this point, and the only evidence is that the first wife was alive two 
 years previous to the second marriage, the presumption of the continuance of her 
 life is neutralized by the presumption of the innocence of the defendant, and in 
 such case there can be no conviction " 
 
ONUS PROBANDI. 73 
 
 should, in the present ease at least, give way.(«) The subject, 
 *23 however, *of conflicting presumption is far too extensive 
 to be discussed in a treatise like the present ; and we shall 
 accordingly here dismiss it, by observing that the rules on the 
 subject seem to be that special presumptions take precedence of 
 general ones ; that presumptions deduced from the ordiuarj- 
 course of nature are stronger than such as are merely artificial ; 
 that presumptions which make in favor of a party accused, are 
 more favored than such as make against him ; and, lastly, the 
 presumptions which tend to give validity to acts of parties and 
 instruments, are more favorably regarded than such as tend to 
 annul or destroj' them.{l) 
 
 § 26. Leaving, therefore, the subject of presumption, we pro- 
 ceed, lastly, to consider the third branch of our general rule. 
 Whether the question at issue be one, both the affirmative and 
 negative of which are, in contemplation of law, equally probable, 
 or whether either side be strengthened by a pre'sumption in its 
 favor, still the relative positions of the parties as to the capability 
 
 (a) R. vs. The Inhabitants of Twyning, 2 B. & Aid. 3S6; vide, also, on this subject. 
 Doe d. Knight vs. Napeau.o B. & Ad. 8S. 
 
 1. A presumption sufficient to shift the burden of proof may arise from the 
 known principles of human conduct, and the ordinary and reasonable course of 
 transactions among men. Snevely vs. Jones, 9 Watts 433 ; Crist & Haldemau 
 Brindle's Ex'rs, 2 Pa. 2.51. 262. 
 
 An account handed or sent to a merchant who keeps it, without any objection 
 being made for a long time, is presumed to be correct ; and there is no reason why 
 the same should not apply to other places, between wliom are accounts current or 
 accounts in the ordinary course of business, Shepherd vs. Bank of Missouri, 15 
 Mo. 114; Freeland vs. Heron 7, Crauch 147 : AVebb vs. Chambers 3, Ired. (X. 
 <J.) L. 374 ; contra, Eobertson vs. "Wright, 17 Gratt 534. 
 
 The law does not presume from the simple fact of one man's handing money 
 over to another, thai the transaction is prima facie a loan, G-arding vs. Walter 
 29, Mo. 426. 
 
 There is no such legal presumption that money advanced by a widowed mother 
 to her child is intended as a gift, and not a loan, as there is in case of a father ; 
 as there is no such legal obligation upon her to maintain and provide for her 
 children, the question is one of evidence in each ca.se, Bennett vs. Bennett, Chan. 
 Div. 40, L. T. R. N. S. 378. 
 
74 ON as PROBANDI. 
 
 of giving evidence al)out it may be materially different. Tiie 
 question may be one of siieh a character as from its very nature 
 almost all the evidence which could be adduced on the subject 
 must lie in the possession of one of the parties, who could, with- 
 out any inconvenience to himself, put an end to litigation at 
 once by producing that evidence, while to call on the other party 
 to establish his case on the ground that the affirmative lay oti 
 him, or that there was a presumption of law against his pleading, 
 would not only be unjust, as placing unnecessary difficulties in 
 his way, but be productive of circuity and delay in judicial 
 proceedings. The law has wisely taken means to prevent this 
 species of practical mischief, by laying down as a principle, " that 
 when the case of a party lies in the proof of some particular fact, 
 *24 of the truth or falsehood *of which he must, from its very 
 nature, be peculiarly cognizant, the onus of proving that fact lies 
 upon him. (a) 
 
 § 27. This ru-le is of very general application ; it holds good 
 whether the proof of the fact in issue involve the proof of an 
 affirmative or of a negative, and even though there be a presump- 
 tion of law in favor of the party pleading the specific fact.(l)' 
 Thus in Borthwick vs. Carruthers,(6) which was an action of 
 assumpsit, to which defendant pleaded infancy, and the plaintiff' 
 replied that "the defendant, after attaining his full age, con- 
 firmed the promise," it was held that, after a promise to pay had 
 been proved by the plaintiff, it lay on the defendant to prove the' 
 fact of infancy, which made him incapable of contracting, as this 
 was a fact peculiarly within his own knowledge.(l) Coverture it 
 
 (a) Dickson vs. Evans. 6 T. E. 57; per" (6) 1 T. K 648 
 Ashurst, J., 1 Piiil. Ev. 188; 1 Stark. Ev. 
 378 ; Ev. Poth. 14i. 
 
 1. This proposition is unsound, and cannot be maintained on principle or by 
 reference to tlie cases. The case in the text, Bostwicli vs. Caruthers, is afflrnied. 
 in Bigelow et als. vs. Gramis, 4 Hill 206, and Stewart vs. Ashley, 34 Mich. 183 • 
 but these cases are not put on the ground that convenience of proof by the 
 defendant necessitated his producing it. The plaintiff's replied that after defend- 
 ant had arrived at the age of twenty-one years, to wit, at such a time con- 
 firmed, &c., said promise. When the plaintiff proved the new promise, confir- 
 mation, &c., lie proved his whole replication in law ; for the law presumes all 
 
ONUS PROBANDI. 75 
 
 would also seem, from the case of Lacon vs Higgius,((<) Infra^ p. 
 34, is another fact of the same description, which is to be proved 
 by the party who pleads it. In an action against a person for 
 practicing as an apothecary without a certificate,(l) it was held 
 that it lay on the defendant to prove that he had a certificate.(6) 
 
 (a) 3 Stark. 167. (6) Apothecaries' Co . vs. Bentlj', R. & M. 159. 
 
 1. Aklerson, B , in Blkin vs. Jansoii, 13 M. & W. 6C2, in referring to the 
 
 Apoth. Co. vs. Benthy, in the text, says : " If you will looli at the Apothecaries' 
 
 promises are made by competent persons till the contrary is shown, and the pre- 
 sumption does not go to competency generally, but will uphold a contract on the 
 presumption of majority at any specified time necessary to support it. The pre- 
 sumption of majority, added to the proof of confirmation or new promise, makes 
 complete proof for the plaintiff ; for the presumption of a fact in a party's favor is 
 sufficient proof, Ross vs. Hunter, 4 T. R. 33 ; Calder vs. Rutherford, 3 B. & B. 302. 
 The whole doctrine of imposing the proof upon the party who must be peculi- 
 arly cognizant of the facts, is not in harmony with principle. The party must 
 produce proof whenever the law imposes the burden upon him, and if the fact Ijc 
 prima facie, and presumptively in his favor, he is relieved from farther proof. 
 The burden is then on the party who is compelled to suffer judgment or free him- 
 self from liability. Great West. R. R. Co. vs. Bacon, 30 111. 347 ; I Gall. 104, 150, 
 188 ; Rex. vs. Pemberton, 2 Burr. 10, 37 ; Rex. vs. Jarvis, 1 Burr. 148 ; 1 East ; 
 Bliss vs. Bramard, 41 N. H. 2.5G ; Solomon vs. Dreschler, 4 Minn., 278 ; Horan 
 vs. Weiler, 41 Pa. 470 ; Toledo, &c., R. R. Co. vs. Pence, 68 111. 254. 
 
 Aldersou, B., in Elkin vs. Janson, 13 M. & AV.662,in remarking upon the lan- 
 guage of Bayley, in the case of Rex. vs. Turner, 5 Man. & Sel. 206. (" that I 
 have always understood it to be a general rule that if a negative averment be 
 made by one party which is peculiarly within the knowledge of the other, the 
 party within whose knowledge it lies, and who asserts the affirmative, is to prove 
 it,") says : " I doubt, as a general rule, whether those expressions are not too 
 strong. They are right as to the lueight of evidence, but there should be some 
 ■evidence to start it in order to cast the burden on the other side." 
 
 So it is held in the principal case of Elkin vs. Janson, supra, that in an action on a 
 marine policy, the law implies sea-worthiness of a ship — that the communication 
 of all facts material to the risk was made by the assured to the underwriter, and 
 if there be a defence on the non-communication of such facts, the burden is on 
 the defendant to give some testimony to change the burden, though they be neg- 
 ative. So it is now held that when the right of action is founded on a negative 
 obligation, the burden of proving the negative is upon the plaintiff, Algie v.<. 
 Wood, 11 J. & Spr. 46 ; Noe vs. Gregory, 7 Daly 273. See § 4, ante, and Doe d. 
 Bridges ys. Whitehead, 8 Ad. & El. 571. 
 
76 ONUS PROBANDI. 
 
 § 28. And in Dickson vs. Evans,(a) which was an iiction b}- 
 the assignees of a bankrupt, where the defendant gave notice of 
 a set-off, and gave in evidence some promissorj^ notes which were 
 dated before the bankruptcy, it was held that it lay on him to 
 show that they came to his hands before that time.(l) And in 
 actions for penalties on the game Jaws, for sporting without 
 qualification, it is held that it lies on the defendant to show his 
 qualification, and not on the plaintiff to disprove it.(6) The same 
 rule is also followed in criminal proceedings. On informations 
 *25 before magistrates for *similar violations of the game laws,, 
 it is sufficient that the qualifications required by the statutes be 
 severally negatived in the information, without stating evidence 
 
 (a) 6 T. B. 57. (6) 1 Phil. Ev. 188. 
 
 1. One who alleges that before the payment of a judgment the judgment debtor 
 had notice of the assignment thereof, must take the burden of proving it if it be 
 denied, Burrell vs. Tedmarsh, 1 111. App. 571. 
 
 Act, Geo. Ill, c. 194, s. 21, you will find the words seem to i-equire that he shall 
 prove it," and the court, in Doe d. Bridges vs. Whitehead, supra, say, " the bur- 
 den of proof in the above instances lies on the defendant — not because the mat- 
 ter is peculiarly within his knowledge, for that cannot vary the rule of law, but 
 because the legislature has, in those cases, by general prohibition, made the act 
 of the defendant |)«m(x/acz"e unlawful." The language of the court, in Sheldon. 
 vs. Clark, 1 Johns. 514, is : " The averment that the defendant practiced physic 
 contrary to the statute is sufficient ; and it was incumbent on the defendant, by 
 his plea, to have brought himself within some proviso of the act. As he has not 
 done so, either by pleading or evidence, we are ot the opinion that judgment ought 
 to be affirmed." So, in a qui tarn action to recover a statute penalty for marrying 
 minors without the consent of their parents or guardians, the burden is on the 
 defendant to show such consent. Wedlock vs. Brown, 4 Mo. 870, — and it is not 
 necessary for a creditor to prove that a debt evidenced by a lost paper is not paid ; 
 the onus is on him who alleges payment. Bell vs. Young, 1 Grant (Pa.) 175 l 
 McGregSry vs. Prescot, 5 CJush. 67. And in an action on a common money bond, 
 the plaintiff need not show that the bond is forfeited ; it rests on the defendant 
 to prove payment. Penny vs. Poy, 8 B. & C. 11. And instead of defendant's 
 proving because the facts are peculiarly within his knowledge, the plaintiff alleges 
 these negatives and defendant proves license consent, payment, &c., because the 
 law supplies the proof for the plaintiff by presuming against infancy, consent, 
 license, payment, &c. The law determines by presumption what is a prima facie 
 case. 
 
ONUS PROBANDI. 77 
 
 to negative thena. " If," says Mr. Phillips p. 188, " such nega- 
 tive evidence were necessary to support the information, it would 
 scarcely be possible in any ease to convict, in consequence of the 
 great number of distinct heads of qualification which are enumer- 
 ated in the statute. On the other hand, all the qualifications 
 specified are peculiarly within the knowledge of the qualified 
 person, but the prosecutor has probably no means of proving a 
 disqualification." 
 
 § 29. Again, in a case where a party was convicted of selling 
 ale without license, and the only evidence given was that the 
 party sold ale, the court held that the conviction was right. 
 And per Abbott, C J. : " The party thus called on to answer for 
 an offence against the excise laws, sustains not the slightest 
 inconvenience from the general rule, for he can immediately 
 produce his license ; whereas, if the case is taken the other way, 
 the informer is put to considerable inconvenience. "(a) And, 
 lastly, where a carrier was convicted under 5 Ann., c. 14, for 
 having game in his possession, it was held sufficient that the 
 qualifications required were negatived in the information, and 
 that it was not necessary to negative them in evidence.(6) It 
 will be remarked that in several of these cases the party who was 
 called on to prove the specific fact in question had the general 
 presumption of innocence in his favor, which, however, was 
 insufficient to exempt him from the operation of the rule under 
 con8ideration.(l) 
 
 (a) Harrison's Case, Kosc. Ciim. Ev. 57. (6) R. vs. Ti-uner, 5 M. & S. 206. 
 
 1. " The party who was called on to prove the specific fact in question, had 
 the general presumption of innocence in his favor." The presumption applies 
 in these actions, not to the establishment of the substantive fact of license, 
 authority, &c., but to the criminative facts of selling liquor, &c., or any other 
 facts or acts requiring a license to justify. These statutes make the acts of 
 selling liquor, hunting, having game in possession, &c., unlawful and injurious to 
 the public at large. The criminal acts are made so by law, independent of license. 
 The presumption of innocence goes to rebut evidence of Ihe criminative acts. 
 The question of license or authority is special justification, and there is no more 
 presumption of the existence of justifying affirmatives than of criminal or culpable 
 affirmatives— except that the defendant's justification may be established by 
 
78 ONUS PROBANDI. 
 
 f 30. Having now gone through the several branches of the 
 E^eneral rule given at the commencement of this chapter, and 
 shown the various principles by which the burthen of proof is 
 *26 regulated, we will now, previous to its conclusion, '"reca- 
 pitulate, and present them all at one view to the eye of the 
 render : 
 
 There are, in all, six rides. 
 
 1. Generally, the burthen of proof lies on the party who asserts 
 the affirmative on the record. 
 
 1. The affirmative on the record means the affirmative in 
 substance, and not the affirmative in fonn. 
 
 preponderance only, while the criminal affirmation must overcome the legal pre- 
 sumption of innocence and the defensive and justifying facts both. The question, 
 then, as to the burden, must be determined in these cases : 1. Is the doing of the 
 affirmative acts made unlawful by law? If they are, this is all the State or 
 plaintiff need prove. 2. If they are not, the State or plaintiff must prove all the 
 facts necessary to constitute culpability or crime, even though it be an inconven- 
 ient negative. The cases have developed a rule of some convenience and gener- 
 ality — " That where there is an exception in the enacting clause of a statute, it 
 must negative the exception ; but, on the other hand, if there be an exception in 
 the proviso thereto, or in a subsequent section of the act, it is matter of defence 
 and must be set jip by the defendant," Atty. Grubb vs. Oakland Co. B. E., 
 Walk. (Mich.) 90 ; Great W. R. B. Co. vs. Hanks, 36 111. 281 ; Lynch vs. Peop., 
 
 16 Mich. 472 ; Faribault vs. Hulet, 10 Minn. 30 ; Clough vs. Shepherd, 31 N. H. 
 490 ; Gould vs. Kelly, 16 id. 5.51 ; Mills vs. Kennedy, 1 Bailey 17 ; McGlorn vs. 
 Prosser, 21 Wis. 273 ; U. S. vs. Hayward, 2 Gall. — ; and the rule obtains with 
 more strictness in indictments, Brittain vs. State, 10 Ark. 299 ; U. S. vs. McCor- 
 mick. 1 Cr. C. C. 591 ; Mathews vs. State, 24 Ark. 484; State vs. Miller, 24 
 Conn. 522 ; State vs. Powers, 25 id. 48 ; Elkins vs. State, 13 Ga. 435 ; Cook vs. 
 State, 26 id. 593 ; Metzker vs. People, 14 111. 101 ; Colson vs. State, 7 Blackf. 
 590; Bonser vs. State, 1 Ind. 408; Schneider vs. State, 8 id. 410; State vs. 
 Bruike, 9 Iowa, 203 ; Byrne vs. State, 12 Wis. 519 ; State vs. Williams, 20 Iowa 
 98 ; Com. vs. McClannahan, 2 Mete. 8; State vs. Godfrey, 24 Me. 232 ; State vs. 
 Garnej, 37 Me. 149; State vs. Shiflet, 20 Mo. 415; Com. vs. Maxwell, 2 Pick. 
 133 ; Com. vs. Pitchburg E. B. Co., 10 Allen 189 ; State vs. Cox, 32 Mo. 566 ; 
 State vs: Abbott, 31 N. H. 434; State vs. Wade, 34 id. 495 ; Staughin vs. State. 
 
 17 Ohio St. 453 ; Werley vs. State, 11 Humph. 172 ; Com. vs. Hill, 5 Gratt. 682. 
 Crompton, J., in Apoth. Hall vs. Calvert) 6 Irish L. E. 194, says : " The alio- 
 
ONUS PROBANDI. 79 
 
 3. If there be a presumption of law in favor of the pleading of 
 ■either party, the onus probandi is cast upon his adversary, even 
 though he may thereby be called on to prove a negative. 
 
 ■4. When there are conflicting presumptions, the onus probandi 
 lies on the party who has in his favor the weakest presumption 
 of the two. 
 
 0. If the case of a party lies on the proof of some particular 
 fact, of the truth or falsehood of which he must, from its very 
 nature, be peculiarly cognizant, the onus of proving that fact lies 
 on him. 
 
 6. And this last rule holds, even though there be a presamp- 
 tion of law in favor of his pleading. 
 
 To aid in the application of these, may be subjoined the two 
 tests already mentioned in this chapter. First, to conceive the 
 .affirmative and negative allegations on which the issue has been 
 
 gation in this case is that the defendant practiced the art and mystery of an 
 -apothecary, and opened a shop as such. [The objection was that the declaration 
 •did not allege any specific instance of the time and persons wilh whom he prac- 
 ticed, &c.] Let us see whether there is any distinction between this case and 
 that class of cases to which it has been compared. Confessedly, in an indictment 
 for obtaining money under false pretences, it is necessary to state the instances. 
 I think there is a distinction between cases where the offence ^is a general offence 
 — an offence against the public, not against an individual — and the cases where 
 the offence is particularly and especially against an individual. No man can be 
 indicted generally for obtaining money under false pretences — he must be indicted 
 for obtaining money under false pretences from a particular individual. No man 
 ■can be indicted generally for robbery, but he must be indicted for robbing some 
 particular individual. In an indictment for obtaining money under false pre- 
 tences, it is not sufficient to state that the party obtained money under false 
 pretences, because the corpus dd/'rii is obtaining money under false pretences 
 from a particular individual ; so, in an indictment for robbery, the corpus delicti 
 is not general robbery, but robbery of a particular individual. This species of 
 qui tarn action, to a certain extent, bears an analogy to those cases of indict- 
 ments where the corpus delicti is doing a thing injurious to the public. In those 
 cases the general form is sufficient, and for this reason — fliat the corpus delicti 
 is an offence against the public. But this case has no analogy to those cases 
 
 -where the corpus delicti is an offence against a particular individual, for the- 
 
 offence here is an offence against the public." 
 
80 
 
 ONUS PROBANDI. 
 
 joiued both struck out of the record, and then consider which 
 party would he entitled to succeed, as the onus probandi will lie 
 on his adversary.(a) Second, to consider which party would 
 be entitled to succeed if no evidence at all were given on either 
 side, as the onus probandi must lie on the opposite party. 
 
 (a) Supra p. 18, n. 
 
CHAPTER II. 
 
 OF TBE RIGHT TO BEGIN. 
 
 ^ 31. Having, in the preceding chapter, considered the doctrine- 
 of the onus probandi, or burden of proof generally, we proceed, 
 in the present one, to show its application in one very important 
 respect, viz., as affecting the order (1) in which the cases of the- 
 
 1. It seems to be the English practice for the junior coimsel for the plaintiff to- 
 open the pleadings, and shortly state the substance of them to the court. The- 
 right to begin is then settled, Chitty's Arch. Pr. 365 ; Roscoe's N. P. 2T4 ; Best 
 Ev., ? 631 ; Woodgate vs. Potts, 2 Car. & Kir. 458. 
 
 Only one counsel on each side is to be heard on the right to begin, and the- 
 counsel for the defendant has the right to reply, Rawlins vs. Desborough, 2 M. i- 
 Rob. 70 ; and the party adjudged to hold the affirmative, and consequently to. 
 begin, will be expected to observe the rule generally adopted in this country to- 
 require a strict opening on the part of the plaintiff and defendant — a summing 
 up by one of the plaintifTs counsel, then by all the defendant's counsel and thena 
 a closing by the plaintiffs counsel, Blight vs. Ashley et als., L Pet. 0. C. 29 ; and 
 when the defendant entitles himself to the opening upon an affirmative plea, the- 
 rule applies by regarding him the plaintiff. See rule laid down by Justice Wash- 
 ington, 3 Cir. Pa., Yuyton vs. Brenell, 1 Wash. C. C. 467. 
 
 The party beginning will be expected to state, briefly — 1st, the nature of thcr 
 action ; 2d, the substance of the pleadings ; 3d, the points in issue; 4th, the facts- 
 and circumstance of the case — the substance of the evidence to be adduced in its 
 support; and, 5th, state the nature of the defence, if it appears on the record,. 
 but no further, Ayrault vs. Chamberlain, 33 Barb. 233. The rule now is, not to 
 allow an opening in regard to the defence, except in an incidental way, but to- 
 wait and see whether the anticipated defence will, in fact, be attempted to he- 
 proved, Morris vs. Wadsworth, L7 Wend. 118 ; Ayrault vs. Chamberlain, supra ~ 
 The counsel for the defendant, in opening his defence, will be confined to a 
 statement of his answer to the plaintiffs case and the evidence he proposes to- 
 give to sustain it, and in such opening he should not comment, in the way of 
 sujnming up upon the plaintiff's evidence, any further than is essential to the- 
 proper understanding by the jury of defendant's evidence. State vs. Zellers. 2. 
 (81) 
 
■82 RIGHT TO BEGIN. 
 
 Tespective litigant parties should be presented to the jury, or, as 
 it is commonly called, the right to begin ; while in the next 
 shall be considered the subject of the right to reply, which is 
 
 Halst. (N. J.) 220 ; Dodge vs. Dunham, 41 Ind. 188 ; Bedell vs. Powell, 13 Barb. 
 IS-i, See Right to Eeply, chap. 33, infra. 
 
 In opening, the party should lay the foundation to exhaust all his testimony in 
 support of the issue on his side before closing, and can thereafter introduce evi- 
 'dence only in reply, Marshall et als. vs. Davies, 78 N. Y. 419 ; Hastings vs. 
 Palmer, 20 Wend. 225 ; Ford vs. Niles, 1 Hill 301 ; Eex vs. Stimpson, 2 Carr. k 
 P. 415. 
 
 Evidence in reply, or rebutting evidence, must be considered in reference to 
 two conditions of the opposite party's testimony. First, such as rebut the opposite 
 party's testimony by simply negativing the^wma/acie case assumed to have been 
 made out, and, second, such as tends to deny or avoid some affirmative fact 
 -which the answering party has endeavored to prove. 
 
 As to the former, whatever is a confirmation of the original case cannot bo 
 .^iven as evidence in reply, and the only proper evidence is such as goes to cut 
 -down and negative the case, and contradict the witnesses on the opposite side, 
 and corroborate those of the party who begj,n, Marshall et al. vs. Davies, supra; 
 ■Silverman vs. Foreman, 3 B. D. Sm. 322 ; Eex vs. Stimpson, supra. So in a 
 ■criminal prosecution, where the defence was alihi, evidence in reply that the 
 prisoner was seen near the place, &c., was rejected, Eex vs. Hilditch et al., 5 Car. 
 --& P. 299. 
 
 And where the counsel for the Crown, having, by direction of the court, called 
 ■witnesses, whose names appeared on the back of an indictment, and had them 
 ■sworn to give the prisoner's counsel a chance of cross-examination, but not exam- 
 ining them in chief, the prisoner's counsel having accordingly cross-examined — 
 ]ield, that after this the counsel for the Crown could not examine them in chief, 
 but only by way of re-examination, and therefore must confine himself to what 
 arose out of the cross-examination, Eex vs. Beezly, 4 Car. & P. 218. 
 
 Corroborating witnesses in the reply means any relevant contraction whose intro- 
 duction would have been improper or uncalled for, when the case was with the 
 party introducing it, Marshall et al. vs. Davies, supra ; and the testimony must, 
 in direct and express terms, meet and negative defendant's proofs, and not infer- 
 ■entially either confirm the plaintiff's case made or destroy the effect of the 
 defendant's. As in Knapp et al. vs. Haskall, 4 Cai'. & P. 590. Assumpsit to 
 recover the amount of a builder's bill for building houses — plea, general issue. 
 For plaintiffs, evidence was given that the work was done and the charges reason- 
 able. 
 
RIGHT TO 13E(JIN. 83^ 
 
 consequent to and depending upon it.[ii) We say in one very 
 important respect ; for this is by no means the only instance in 
 which the doctrine of the onus probandi can be applied in prac 
 
 (a) Buzzell vs. Snell, 25 X. H. 47i; BeUi- key, 33 Barb. 21S; Lex, &o., Ins. Co. vs.. 
 
 nap vs. WendeH, 21 id. 17.>; Cliesley vs. Paver, 16 Ohio 324. 
 
 Chesley, 37 id. 229; Huntington vs. Con- 
 
 The defence was that the charges were too high, ami that the deleiidaiit had 
 paid money to the plaintiff suffieient to cover what the amount onght to have 
 been. For the defendant several surveyors were called, who stated that they had 
 surveyed the houses in the year 1<S:^1, and that they cousidered the amount of the- 
 charges to be ,£100 too high. F. Pollock, for the plaintiff, wished to put in as 
 evidence in reply, a letter from the dofeudaiu's attorney to the plaintiff, stating- 
 that the defendant had had a survey of the promises in the year 18li9, and that 
 his surveyor thought the charges t'60 too much. 
 
 Sir J. Scarlett, contra : " This is not evidence in reply ; it does not contradict 
 my case : it does not show that, in the year 1831, the value is not what my wit- 
 nesses have stated ; nor does it show that they never made any valuation." 
 
 F. Pollock : " The defendant sets up this valuation as a fair one. Now, it i.s 
 competent for me to show that it is not so ; for in the year 1829 the defendant ^\-as 
 setting up a different valuation." 
 
 Sir J. Scarlett : " Suppose I had had more surveyors here, I need not have 
 called them. If my friend had had twenty witnesses in attendance to prove any 
 fact, he would select those that would best prove his case, and not call the others ;. 
 and if he had meant to have relied on this letter, he should have put it in as part of 
 his original case." 
 
 Lord Tenderden, C. J. . "I am of opinion that this is not proper evidence in- 
 reply." The evidence was rejected. 
 
 As to the latter, the denying or avoiding of affirmative facts introduced by the 
 opposite party, the following is an illustration. On a prosecution for larceny, 
 which was sustained in the first instance merely by the prisoner's possession of the- 
 stolen goods, [quwrc— if simple possession would authorize a conviction, see ? 11, 
 ante,] the latter proved by his daughter that he bought the goods of T. The 
 prosecutor then called T. for the first time, but was restrained from inquiring of 
 him any further than to negative the sale, for he was a witness in reply. On ask- 
 ing him whether he did not see the prisoner steal the goods, the inquiry was stop- 
 ped, as T. was not called in chief, and in the first instance, as he should have been, 
 to warrant his giving evidence in chief. Being a witness in reply, he could only 
 be received so far as his testimony went to destroy the case set up by the pris- 
 oner, Eex. vs. Stimpson, 2 Oarr. & P. 415. See Leland vs. Bennett, 5 Hill 288 ;, 
 Ford vs. Niles, 1 id. 300. So it will be seen that under the general rule that par- 
 ties shall respectively introduce all the testimony on their affirmatives together,. 
 
"84 RIGHT TO BEGIN. 
 
 4 
 
 tice. After the case is opened and gone into, it often becomes a 
 «erious question for the court to determine, by means of those 
 general rules by which the burden of proof is regulated, and by 
 the presumptions (1) to which allusions have been made in the 
 last chapter, in what manner the jury should be directed when 
 the entire case is to be laid before them for their verdict ; and 
 the jury themselves are expected at all times to form their 
 •decisions on those sound rules of probability and principles of 
 natural reason which have been, from their obvious justice and 
 •convenience, embodied into our jurisprudence. (2) So that we 
 ^re here only called upon to consider the onus probandi as affect- 
 ing the right to begin, and not in the full extent of its operation. 
 § 32. The having the right to begin, and state his case first 
 to the jury, being sometimes of great advantage to a litigant 
 *28 *party, and at others quite the reverse, it is a great perfec- 
 tion in an advocate to be able to see at once, from the nature of 
 the facts he has to deal with, whether it would be advantageous 
 for his client to have the right to begin cast upon him or not, 
 and accordingly struggle to obtain that right or transfer it to 
 his adversary, as circumstances require.(«) It is an advantageous 
 right when a party has a good case and strong evidence to sup- 
 port it, as it generally (and certainly if opposite side produce 
 witnesses) confers a right to reply on the opener,(6) and thus 
 
 (a) See § 5, n. 1, supra. (6) See p. 30, u. 1 to § 10. 
 
 1. Presumption of law makes a,prima facie case, I 3, n. 1 ; and a ruling which 
 ■ileprives a party of the benefit of s,Vlc\x prima facie case is error, p. 16, n. 1 of ? T). 
 
 2. The power of the jury is not a power of the will, merely ; it is a power 
 involving judgment and discretion, and must be, in a reasonable degree, subject 
 to those restraints w'lich judgment and discretion imply, Duz. vs. Duz. 14 B. 
 Mon. 481. 
 
 the rule includes all circumstantial- testimony which, by inference, is expected to» 
 confirm or aid an affirmative case or defence. But a party is only bound to make 
 out his case as he has alleged it in his pleadings, Mann. vs. Eckford, 15 Wend. 
 .i02, and he can neither be permitted or required to go beyond the issue joined, 
 ■Gardiner vs. Gardiner, 11 Johns 47 ; Ford vs. Niles, supra ; Morris vs. Wads- 
 worth, 11 Wend. 100 ; Shepard vs. Potter, 4 Hill 203. 
 
RIGHT TO BEGIN. 
 
 ;gives the last word. But, on the other hand, if the case which 
 a party has be a weak one ; if, to support it, he has only slight 
 evidence to adduce, or perhaps none at all, but goes to trial on 
 the chance (if defendant) of being able to nonsuit the plaintifF,(l) 
 or that the case of the opposite party may break down through 
 its own intrinsic weakness, or trusts to the speech of his counsel 
 to destroy, in the minds of the jury, the efiect of the adversary's 
 evidence ; then the decision of the judge, that he was the part}- 
 entitled to begin, might prove fatal instantly to his cause, as it 
 •was in the late case of Edwards vs. Jones.(a) That was an action 
 
 (a) 7C. &P.633. 
 1. The defendant generally demurs to the evidence, or makes a motion in the 
 nature of u demurrer to the evidence. The demurrer must admit the facts, not 
 merely the evidence tending to prove thein, Dormady vs. State Bank, 3 111. 236 ; 
 Waul vs. Kirkmau, 2T Miss. 283; Fowle vs. The Com. Coun. of Alexandra, 11 
 Wheat. 323, and the case made by the demurrer is in many respects like a special 
 verdict (Id.), and the judgment of the court on the demurrer stands in the place 
 ■of a verdict, and the defendant may take advantage of any defects in the decla- 
 ration by motion in arrest of judgment or by writ of error, U. S.Bank vs. Smith, 
 
 11 Wheat. 171. It is a matter of discretion with the court whether it will com- 
 pel a party to join in a demurrer to the evidence ; and it ought not to be allowed 
 where the party demurring refuses to admit the facts which the other side attempts 
 to prove, nor where he offers contradictory evidence or attempts to establish con- 
 tradictory propositions. Young vs. Black, 7 Cr. 565 ; Mans vs. Montgomery, 11 
 Serg. & E. 325 ; Brandon vs. Huntsville Bank, 1 Stew. (Ala.) 320 ; Patty vs. 
 Bdline, 1 Cr. C. C. 60 ; Jordan vs. Sawyer, 1 Id. 372 ; Morrison vs. McKinnon, 
 
 12 Fla. .552 ; Dormandy vs. St. Bank, 3 111. 236 ; Jones vs. Ireland, 4 Iowa 63 ; 
 and in general the party who demurs is held to admit every fact which a jury in 
 the exercise of a fair and reasonable discretion could infer from the evidence ; but 
 ie is not bound to admit forced and violent inferences, U. S. vs. Williams, Ware. 
 175 ; Jones vs. Yanzant, 2 McLean 596 ; Copeland vs. New Eng. Ins. Co., 22 
 Pick. 135 ; Jacob vs. U. S., 1 Brock. 520 ; People vs. Eoe, 1 Hill 470 ; Doe vs. 
 ^in, 4 Blackf. 263 ; Hausbord vs. Thorne, 2 Leigh. 147 ; Clopton vs. Morris, 6 
 Id. 278 ; Eyan vs. State, 25 Ala. 65 ; Higgs vs. Shehu, 4 Fla. 382 ; Middleton 
 TS. Com., 1 Litt. (Ky.) 347 ; Dickey vs. Schreider, 3 Serg. & E. 413 ; Tucker vs. 
 Biting, 32 Pa. 428 ; Booth vs. Colton, 13 Tex. 359 ; Tutt vs. Slaughter, 5 Graft. 
 464 ; Forbes vs. Church, 3 Johns Cas. 159 ; Yaughn vs. Eason 4 Yeates 54 ; 
 Johnson vs. U. S., 5 Mass. 425 ; Franks vs. State, 1 Greene 541 ; Feay vs. Decamp, 
 15 Serg. & 227 ; Davis vs. Steimer, 14 Pa. 275 ; Bradbury vs. Eeed, 23 Tex. 25is. 
 
86 RIGHT TO BEGIN. 
 
 of assumpsit by the indorsee of a promissory note against the- 
 maker, to which the defendant pleaded a long plea, amounting 
 in substance to want of consideration for the note ; to a portion, 
 of which the plaintiff replied that there had been a good consid- 
 eration given, and to the rest entered a nolle prosequi. Counsel 
 for the plaintifi" said he believed the defendant should begin,., 
 which was ruled accordingly by Alderson, B., on which defend- 
 ant's counsel admitted that he had no^wltnesses ; and the judge- 
 immediately directed the jury to find a verdict against him: 
 whereas, had the plaintiff begun, the I'esult might have been very 
 difi'erent.{]) 
 
 1. In Milliard et. al^-. v.s. Thonie, 56 X. Y. 405, the complainants alleged, in 
 substance, that they were partnsr.-j, and that they sold and delivered certain goods. 
 &c. Defendant T.. who alone appeared 'and defended, denied the allegation of 
 the partnership, but admitted that defendants purchased of plaintiffs the goods 
 set forth in the complaint. The answer then set up an affirmative defense — lield,- 
 that the denial of plaintiff's partnership was immaterial, as, if the affirmative- 
 defence failed, they were entitled to judgment whether they were partners or not :: 
 that the defendant had the affirmative and the right to open and close the proof, 
 the denial of which was error. Citing Lindsley vs. the Eu. Pet. Co. 3 Lans. 176 :;, 
 Elwell vs. Chamberlain, 31 N. Y. 641. 
 
 This case shows that immaterial issues will be disregarded in considering the- 
 right to begin, and the material issues given the same effect as if the immaterial 
 did not exist. The denial that plaintiffs were partners was pregnant with the- 
 admission of a right to join in an action if they could join at all without being 
 partners ; but the law says partnership is immaterial if the cause of action be- 
 joint, Wood vs. Fithian, 24 N. J. Ij. 33, and the law is satisfied if the actual par- 
 ties to the contract are joined whether partners or not. Law. vs. Cross, 1 Black- 
 533 ; and an admission by defendant that he bought goods of plaintiffs is ait 
 admission that plaintiffs dealt jointly, because of the well-settled presumption in 
 favor of joint contracts, Ohitty's Cont. 81 ; Mody vs. Sewell, 14 Me. 295 ; Sines 
 vs. Tyre, 3 Brev. (S. C.) 249. 
 
 There should be a denial of the right to sue jointly by the general issue, Snell 
 vs. DeLand, 43 111. 323 ; Harlem vs. Emort, 41 Id. 320 ; Ulmer vs. Cunningham,. 
 2 Me. 117 ; Waldsworth vs. Waldsworth, 20 Id. 156 ; Glover vs. Honeywell, ft- 
 Pick 222 ; Eobinson vs. Scall, 3 N. J. L. 817 ; Scott vs. Patterson, 1 A. K. 
 Marsh ; 441 ; or plea, as in suit by the holders of a negotiable note, the denial of 
 the right of the holders to sue puts them on proof, and thereby entitles them to- 
 open and conclude the argument, Loggins vs. Buck, 33 Tex. 113. 
 
RIGHT TO BEGIN. 87 
 
 § 33. These observations may suffice to show the practical 
 ^29 *importance of the subject under consideration, and whicb 
 we will accordingly enter upon without further preface. 
 
 The rule regulating the right to begin is sometimes expressed 
 thus : that the party who asserts the affirmative of the issue has 
 a right to begin, (a) It has been thus enunciated thro-ugh mere 
 
 (a) See § 5, n.2,p.l8. Lilt. E. 3(i ; 3 Car. teel, 3 iil. 3«S: Mason vs. Ri-oom., '24 Ga. 211: 
 1; K \s. remcs, 1 C. & l-'.823: row)ei- V.S. Kimball vs. AOair, 2 Hlaekf. 320; WaUei- vs. 
 UosTer. M.&M.'241: 3C.&l-'.463; Williams Movgan, 18 15. Mon, 136; Judge vs. Stone, 
 vs. Thomas, 4 C. & P. 234; Lewis vs. Wells, 44 N, H, ,'!03; List vs. Cortepetep, 2«lnil. 27: 
 7 C, & P, -221; Davidson vs. Henop, 1 Cr. Havvev vs. Elithorpe, 28 HI. 418; Tiplort 
 C. Ct.280: Uiinlopvs. Peter, id, 403; Beal vs. Triplelt, 1 Meto. (Ky.) 570'. 
 vs. Newton, id. 404; Henderson vs. (Jus- 
 Ill Branford vs. Freeman, 14 Jur, 987, the defendant was ruled to begin. He- 
 began — introduced a single witness, Avhich seems to have been all the testimony,, 
 and the plaintiff had a verdict. Defendant moved for a new trial. In the argu- 
 ment, Anderson, B., interposed and said : " "When I ruled that you must begin,., 
 ought you not to have stood on your right by refusing to adduce any oyidcnce ?' 
 You would then have compelled me to direct the jury, and if I put the wrong- 
 point to them you would be entitled to a new trial ; instead of that, you called a-, 
 witness who proved the case against you," New trial refused because no injury- 
 appears to have been done. This ruling is unsound. The plaintiff's case stood 
 proved from the very force of the ruling that the defendant should begin. And 
 by eases cited, p, 16, in n. 1 |? 5, 10, the defendant lost nothing by an effectual 
 attempt to make a case under the ruling. The error consists in requiring a, 
 party, as matter of law, to prove a case already proved. The language of the 
 court, in Heinemann vs. Heard, et, als,, 62 N. Y. 456 : " The question as to- 
 which party has the affirmative of the issue is in many cases very material, as the- 
 cai-e might be one in which the jury might hesitate in finding that the plaintiff" 
 had established the charge, and yet when they would not find that it had bcciii 
 .satisfactorily answered," 
 
 The complications arising from proving too much— z, e,, one party proving the-- 
 case of the other instead of his own — must be solved in connection with the plead- 
 ings. In Paige vs, Willet, 38 N, Y, 31, the court say : "A mere denial in an, 
 answer will not allow a defendant to insist upon a fact brought out by the plain- 
 tiff's evidence ; although, if the matter had been set up by way of defence, it 
 would have availed to defeat the action, Brazil vs, Isham, 2 N, Y, 9," And gen- 
 erally, when defendant pleads a good plea, specially, he will prevail, though the 
 proof of it appears from the plaintiff's testimony, as in Allen vs, Carey, 7 EL & 
 Bl, 463 ; 3 Jur, N, S, 1146 ; so a substantial defect in a declaration may be sup- 
 plied by admissions in the plea, Watkins vs, Gregory, 6 Blackf, 133 ; Bobbins vs,. 
 Oodman. 4 E. D, Sm, 325. 
 
 7 
 
88 RIGHT TO BEGIN. 
 
 inadvertence, for although this may be true as a general iirinci- 
 ple, it is very far from possessing that universality and precision 
 of which the subject is susceptible. Generally speaking, it if 
 true that the party who asserts the affirmative of the issue has 
 the onus probaudi upon him ; but this is far from being always 
 the case, as was shown \u the last chapter. It would be Tuore 
 correct to say, and it is the undoubted rule on the subject, " That 
 the party on whom the onus probandi on the record lies, has 
 generally and 2:)riina facie a right to begin." 
 
 § 34. In this rule two things are to be observed : First, that 
 the onus probandi which influences the right to begin is the onus 
 probandi as developed 07i the record ; any shifting of the onus 
 probandi after the case has been gone into (1) cannot, of course, 
 affect the present subject ;(«) it is the dut}' of the judge to 
 examine the record, and see on whom tlie onus probandi lies 
 there, and call upon the party to begin accordingly.(2) But, 
 
 (a) See § 10, n. 1 ; §§3, 5, and notes. 
 
 1. lu DeGi-aff vs. Cavmichael, 13 Hun. 129, the court say ■- " As to the thinl 
 point raised by the appellant, it is only necessary to inspect the pleadings to 
 determine this question, and it can only be determined by so doing. The action 
 was upon a note. Its execution was not denied. There was nothing in the first 
 instance for the plaintiff to prove. When the trial was ready to proceed, it seems 
 ^ no suggestion was made as to which party had the affirmative. The plaintiff's 
 ■counsel stated his case and presented the note, and, upon its appearing to be mu- 
 tilated, called the witness to identify it and to explain how it came in that con- 
 dition. 
 
 But this was in reference to no issue i-aised Ijy the pleadings. When the evi- 
 dence was closed the question arose for the first, as to who had the right to make 
 the closing address to the jury, and the learned justice very properly held that 
 the defendant's counsel had that right. Certainly this was so according to the 
 .pleadings, nor do I see that anything had taken place at the trial by which the 
 <lefendant had waived such right. A difi'erent ruling would have been erroneous, 
 and would have entitled the defendant to a reversal, in the event that the verdict 
 .had been in the plaintiff's favor, Millard vs. Thorn, .56 N. Y. 405 ; Elwell vs. 
 'Chamberlain, 31 Id. 614. 
 
 2. In The Penhryn Slate Company vs. Meyer, 8 Daly 62, at the opening of the 
 trial, plaintiff moved for judgment on the pleadings. The motion was denied. 
 Under objections of the plaintiff the court allowed the defendant to open the 
 
RIGHT TO BEUIX. 89 
 
 t^econdly, it is to be remarked that that party has only the prima 
 farie right to begin, as his adversary may (in most instances, at 
 
 case, to which ruling tlie plaintiff excepted. \Yheii the evidence was in, plaintiiF 
 again cdaimed the right of the party holding the affirmative, and was allowed by 
 the court to make the closing address to the jury. The jury returned a verdict 
 in the sum of §19 for the plaintiff. On appeal, Daly, C. J., said : 
 
 ■' The plaintiff was not entitled to judgment upon the pleadings. The cause of 
 action as averred — the plaintiff's right to rocriver >;2 19, the lialance due upon 
 •certain mantels. Arc. of the value, when set up. of %'Mm. upon which ."pITl had 
 been paid — was not admitted by the answer. The answer admits that the plaintiff 
 sold to the defendant mantels, hearths and frames, of the amount and value as 
 stated when delivered. That the goods wore delivered and set up, but that a 
 part thereof was not perfect and according to agreement. 
 
 ■'■There was a distinct denial that the plaintiff delivered and set up the articles 
 sold — and which they had agreed to deliver and set up — wliich left it for tlie 
 plaintiff to prove performance of the contract averred by the curaplaiuant and 
 admitted by the answer, or the auswrr might be regarded a^ admitting the sale 
 and delivery of the articles, and averring the right to receive damages upon the 
 ground that the articles when set up were not of the kind or value agreed 
 upon. Taking the whole answer together, this may ha\c been the proper con- 
 struction of it ; so that in either case the motion i'oi- judgment upon the pleadings 
 was properly denied. 
 
 "In an a(ti(jn for goods sold and delivered for a stipulated sum, an answer that 
 the articles delivered were not of the qualitj-. kind or value agreed upon, is either 
 an answer to the whole demand, upon the ground that the contract had not been 
 performed, or is availaljle l)y way of recoupment to reduce the price agreed upon 
 to the sum which the defendant, who has kept the articles, ought to pay ; and all 
 that the plaintiff ought to have for tlie defective articles he deli\ered, Farns- 
 worth vs. (jarrand, 1 (,'amp. 3H : Fisher vs. Samunda, Id. 190, 
 
 '■In either aspect it is a denial that the plaintiff delivered the articles agreed 
 upon; and that being the issue ci'catecl liy the pleadings, the affirmative of it is 
 upon the plaintiff to show the perlbrmance of the contract on his part, which 
 has not been admitted, 
 
 "The judge at the trial, however, held othei-wise. He held that the defendant 
 bad the atfirnuitivc of the issue, to which the plaintiff e.xceiited ; whereas if, as he 
 had previously held, the plaintiffs w.'re not entitled to judgement on the plead- 
 ings, then the affirmative of the issue; was certainly with them, 
 
 "There arc, therefore, two questions— 1st, Was the judge right in holding that 
 the defendant had the affirmative of the issue ? and, 2d, If he was not, was the 
 
90 RIGHT TO BEGIN. 
 
 least) get it from him by admitting his prima facie case.(l) 
 Thwaites vs. Swainsbury, m/r«, p. 31. 
 
 1. Where the answer admits the making and delivery of a promissoi-y note sued 
 upon, and fcts up an affirmative defence, the defendant has the right to open and 
 conclude, and it is error to deny it, Lindsley vs. Bu. Pet. Co., 3 Lans. 176. 
 
 In Smith vs. Sergent, 67 Barb. 244, was a suit upou n promissory notO' for 
 §.500, made by the defendant, and payable to Henry J. Corbin, the plaintiff's 
 testator, on demand, with interest. The consideration of the note, as expressed 
 therein, was the purchase by the defendant, from Corbin, of his "stock, farming- 
 and dairy tools." 
 
 'J'he defence was, first — That the note was given by Corbin to his daughter, the 
 defendant's wife, at or about the time it was made ; and, second — That it had 
 been satisfied by the giving of another note by the defendant to his wife, at the 
 request of (.'orbin, in its place and stead. There was also a counter claim, made 
 liy (he defendant, for board, attendance, &c., furnished by bim to Corbin and 
 wife. The jury found in favor of the defendant on all the issues, >te. The court 
 say : " The plaintiff's case, as stated in the complaint, except the averment of 
 indebtednes.^, which was a conclusion of law, was expressly admitted by the 
 defendant's answer, and the matters of defence stated in the pleadings were 
 entirely affirmative. Hence the affirmative of the issues between the parties on 
 the record was with the defendant. The learned jndge at the circuit held other- 
 wise ; but this ruling is here of no importance, inasmuch as the plaintiff cannot 
 be heard to complain, for he claimed and took the lienefit of the ruling, and the 
 defendant was not injured by it, as the verdict was in his favor, notwithstanding 
 the supposed advantage afforded thereby." See Bowen vs. Speers, 20 Ind. 146. 
 
 error cured by allowing him, after all the evidence was given, to close the case in 
 summing up to the jury ? 
 
 ■' I have already said that the affirmative of the issue necessarily created by the 
 pleadings was with the plaintiff. Where the plaintiff's cause of action is affirm- 
 atively admitted, and the admission made leaves him nothing to prove — the 
 defence set up being in the nature of a counter claim — the affirmative of such 
 issue is upon the defendant, who is entitled to begin and close the case. But 
 that was not the state of facts here. The pleading, in whatever aspect it is 
 viewed, denied that the articles delivered were of the kind agreed upon — the 
 averment being that " a part of them were not perfect and according to agree- 
 ment." It was, in substance, that the contract averred in the complaint had not 
 been performed, and as the obligation was upon the plaintiffs to show that it had 
 been, they had the affirmative of that issue, and were entitled to begin and to 
 clox' the rate. 
 
RHJIIT TO BEGIN. 91 
 
 § 35. For lis it is a principle that the jury are only siuiimoued 
 to try matters in issue, and nothing else, any fact admitted on 
 the record cannot be questioned, (1) and no evidence is required 
 
 1. It is a fundamental rule in pleading that a material fact asserted on one side 
 and not denied on the other is admitted, Summons vs. Jenkins, TG 111. 482 ; Briggs 
 vs. Dorr, 19 Johns. 9.5 ; Jack vs. Martin, 12 "Wend. 316, Kaymond. vs. Wheeler, 
 1) Cow. 29.") ; nor will its e.xistence be suffered to be denied— nor facts proved 
 inconsistent with such admission, Eobbins vs. Codman, 4 E. D. Smith 32.5 ; Page 
 vs. "Willet, 38 X. Y. 31 ; Eidgway vs. Longacre, 18 Pa. 215 ; Thatcher vs. Hunn, 
 12 Iowa 303; "Watson vs. Higgins, 7 Ark. 475. But if the matter is not well 
 pleaded and is not an answer to the broach assigned in the declaration, it cannot 
 be considered an admission, Simmonton v.s. "Winter, 5 Pet. 141. The admissions 
 will not bind biyond the facts contemplated liy the pleadings, as, in an action on 
 account — hdd, that the defendant could not insist upon an award made upon the 
 account as a bar to the suit, ulthongli the fact of the aw.ird appeared from the 
 plaintiffs' evidence, Brazell vs. Isham et el., 12 X. Y. 9. But if the award had 
 been specially pleaded so as t.) have been in issue the case could have been dif- 
 ferent. See n. 1, 5 32. ante 
 
 "The authority relied upon by the respondent, Hoxie vs. Grrcen. 37 How. Pr. 97, 
 ■was a verydfferent case from this The action there was upon a promissory note, 
 the making of which was admitted, and the making of the note by the defend- 
 ant was all that the plaintiff could be required to prove in the action brought 
 upon it. The defence set up was that it was given under duress, and therefore with, 
 ■out consideration ; that it was transferred to the plaintiff after it was due, and that 
 he was not the real owner. Thejc allegation; requiring no reply were deemed 
 ■denied by the plaintiff. Code, I 168, and, upon the issue thus created, the affirma- 
 tive was with the defendant — the plaintiff' in the pleadings being entitled to 
 I'ecover without the production of any evidence. The ruling at the trial, that 
 the defendant had the affirmative of all the issues, was therefore atfirined. Such 
 was also the case of Huntington vs. Conkey, 33 Barb. 218, where the note sued 
 upon was admitted, and the defence set up was usury, which it was incumbent 
 upon the defendant to prove affirmatively. 
 
 ""Where the plaintiff has the affirmative of the issue, h'j has the right to open 
 and close the proofs, and the right to reply in summing up the case to the jury. 
 It is a legal right — not a matter in the discretion of the court — and if he is 
 ■deprived of it, it is error, Millard vs. Thorn, 56 N. Y. 502. After the denial of 
 the plaintiff's motion for judgment upon the pleadings, the judge, as I have said, 
 held that the defendant had the affirmative of the issue, to which the plaintiff' 
 excepted. The defendant then gave all his testimony, airl wh?n he rested the 
 
92 RIGHT TO BEGIN. 
 
 *30 to support it ;(1) and in like manner, if a *party or his 
 counsel makes any admission in open court,(2) no evidence ought 
 to be given upon it ;(a) and if the admissions so made go to the 
 full extent of recognizing the prima facie case of the adversary, /. e.,. 
 go so far as to admit that in the absence of any evidence being 
 adduced he is entitled to a verdict, it is evident that, according- 
 to the principle laid down in the last chapter, the onus proband! 
 no longer lies upon him, and he ought not to be called on to- 
 
 (a) Paige vs. Willot, SS N. Y, 31; Robins vs. Codman, 4 E. D. Sm. 32,); Brazil vs. 
 I.^liam, 12 N. Y. 9. 
 
 1. Where a fact proposed to be proved at the trial by one part}- is admitted by 
 the other side, it is not error for the court to refuse to let it be proved by wit- 
 nesses, Pridgen vs. Bannerman, 8 Jones (X. C.) 53 ; but the fact must be admit- 
 ted at the trial, and not before the jury are sworn, Lowery vs. Vernon, 3 Watts 
 317, and for this purpose attorneys have power to bind by written admissions aS; 
 to the facts of a case, Harvey vs. Thorpe, 28 Ala. 2o(), and when made in court 
 for tlie purpose of a trial are conclusive, Thompson vs Thompson, 9 lud. 323^ 
 and they are held competent evidence iu a second trial, Elwood vs. Lannon, 27 
 Md. 200 ; but admissions in a trial are not to be extended by implication, Den- 
 nis vs. Dennis, 15 Md. 73. 
 
 2. When the defendant, iu open court, before entering upon the trial, admits 
 the plaintiff's cause of action, and thus removes the necessity of any proof on his 
 part, he will be entitled to open and close, Aurora vs. Oobb, 21 Ind. 492 ; Katz" 
 vs. Kuhn, X. Y. Com. Pleas, .Vpr. 1880, 9 Eept'r. 632 ; 1 Phil.Ev. Cow. & Hillst 
 Notes 818, 1 Moo. & Malk, 3 Stark. 176, Hill vs. Fox 1 P. & P. 136 ; Ovcrbury 
 vs. Muggrige, Id. 137. 
 
 It seems to have grown into a practice to leave it optional with the plaintiff,, 
 whether he will accept oral admissions of all the facts incumbent on him to prove- 
 by the defendant at the trial in cases where admissions could have been made hy 
 plea or other means of getting them on the records, simply to give the defendant 
 the right to begin. He ought to spread his admissions on the records. Pontifex 
 vs. Jolly, 9 C. & P. 202 ; Price vs. Seaward, C. & Marsh, 23 ; Brooks vs. Clark, 
 4 F. & F.484; Wrigglesworth vs. Aikiu, 5 Cush 293 ; Merriam vs. Cunningham,. 
 11 Id. 40 ; Snow vs. Batcheldor, 8 Id; Johnson vs. Wideman, Dud, (S. C.) 325. 
 
 plaintiff gave his evidence in reply ; and when all the testimony was in, the 
 plaintiff claimed the right to close to the jury, as having the affirmative, upon, 
 which the judge said that he thought he was in error when he deprived the 
 plaintiff of the right of opening, and that he would therefore give themi the 
 affirmative, which, as the testimony was all in, was the closing address to the jury, 
 of which the plaintiff, it appears, avaibd themselves. 
 
RIGHT TO BEGIN. 93 
 
 begin. (1) But it must be carefully remarked that in order to 
 obtain this, the above principle ought to be attended to, namely, 
 that the party wishing thus to shift the right to begin must 
 
 1. A special plea admits a cause of action, if one be stated, of the nature set 
 forth, but not precisely as laid in kind, degree, extent, or value ; these must be 
 shown h\ proof unless exact precision in the admitted allegation be material to 
 the plaintiff. Rich v,-. Rich, 16 Wend. ^'^'?,'^ ; AVagner vs. Bell, 4 Monr. 7 ; Halcy 
 vs. Calcr. Minor 63 ; as when it appeared that the plaintiff owned absolutely 
 some of the goods injured, and was part owner (jf the rest, it was held, that a 
 refusal to exclude evidence of the trespass to the goods of which the plaintiff 
 was only part owner, was correct, the defendant not having raised the question 
 of ownership in his plea, Lefebre vs. Utter, Tl AYis. 189. 
 
 If .issue be joined in assumpsit on the common counts on a plea of payment, 
 and no evidence be given at the trial by either party, the plaintiff will be enti- 
 tled to a verdict. The verdict, however, must be for nominal damages only, 
 unless the plaintiff produce evidence of the extent of his claim, for the plea docs 
 not admit of any specific amount. The X. Y. Dry Ddik Co. vs. M'lntosh, 5 Hill 
 290. So payment of money into court admits the cause of action, and in Porrin 
 vs. Mon. R. R. Co., 11 C. B. 863, the court say : " If the declaration is general 
 and unspecific, the payment of money into court, although it admits a cause o !' 
 action, does not admit the cause of action sued for, and the plaintiff must give 
 
 ■■ As the plaintiff's right to open the proof affirmatively was denied, and they 
 excepted to the ruling, I do not think that the error was cured by allowing them, 
 after the testimony was in, the closing address to the jury. 'J'he opening of the 
 case to the jury, by the plaintiffs, and the laying before them of their evidence 
 in the first instance, and confining the defendant to evidenc' in the way of reply, 
 was a part of their legal right, of which ' they were deprived under exception ; 
 and I fail to see how the error is cured by allowing them afterwards what was 
 their further right, the final address to the jury. Depriving a party (if one jjart 
 of his legal right is certainly not cured liy allowing them another part. Tliis 
 being, as the Court of Appeals have held, a strict leg.il right, the judgment will 
 have, for this error alone, to be reversed, which is to b • regretted, us the case has 
 been already tried three times, and upon two occasions has resulted in favoi- (jf 
 the defendant. We are not required under the new code to grant a new trial, if 
 in our opinion substantial justice does not require it (^1003), but it would be 
 going very far to say that, in our judgment, the plaintiff's rights were in no way 
 materially affected by allowing the defendant to open the case and to lay his evi- 
 dence before the jury in the first instance. I think, therefore, that the judgment 
 will have to be reversed." 
 
D4 RIGHT TO BEGIN. 
 
 ^admit tlie entire prima fneie case of his adver3ary;(l)(rt) the admit- 
 ting important portions or facts of it will not suffice for this 
 purpose. For instance, in the case of Doe d. Warren vs. Bray,(J) 
 
 (a) Lowry vs. Vernon, 3 Watts 317: Harvey vs. Tliorpe. 28 Ala. 250; Thompson vs. 
 Thompson, 9 In(J.323 ; Elwood vs. Lfinnoii, 27 Md. 200. See ante n. 
 (6) M. & M. 166. 
 
 1. Ill an action by the eiidoi-see against the maker of a note, a defendant who, 
 by filing an admission of all the facts necessary to be proved by the plaintiff in 
 ■order to make out & prima facie case, obtains the right to open and close, and is 
 ■not thereby precluded from introducing evidence to show that the plaintiff has 
 .no title to the note, Spaulding vs. Hood-, 8 Cash. 602 ; see, also, Loggins vs. Buck, 
 33 Tex. 113. In an action for goods sold and delivered, an admission by the 
 ■defendant, that he purchased and received the goods in question to be paid for 
 mot in money, but in specific articles, is not sufficient to entitle him to opeii and 
 •close, Bradley vs. Clark, supra. So in trespass de bonis asportatis, the 
 'defendant pleaded the general issue, and filed a brief statement, alleging as an 
 lofficer he attached the goods as the property of a stranger — held, that the plaint- 
 iff had the burden, notwithstanding the defendant admitted that the property 
 was once in the plaintiff, and assumed the burden of proving the transfer t(J such 
 
 stranger, Ayer vs. Austin, 6 Pick. 225 ; Bangs vs. Snow, 1 Mass. 181 ; see 
 
 ante. Instances of special pleas amounting to the general issue. See tit. case. 
 
 ■evidence of the cause of action sued for before he can recover larger damages 
 than the amount paid into court. On the other hand, if the declaration is speci- 
 fie, so that nothing would be due to the plaintiff Irom the defendant unless the 
 ■defendant admitted the particular claim made by the declaration, we think the 
 payment of money into court admits the cause of action sued for. See Richards 
 ^"s. Nixon, 20 Pa. 19. On the plea of tender the afhrmative is on the defendant 
 ■who has the right to open and close. Auld vs. Hepburn, 1 Cr. 0. C. 122." 
 
 In equity a material averment in a bill neither admitted or denied must hj sup- 
 ported by proof, Wilson vs. Kinney, 14 111. 27 ; Dooley vs. Stipp, 26 Id. 86, but 
 ■evidence is unnecessary where the bill is confessed, Thatcher vs. Hunn, 12 Iowa 
 303 ; Clements vs. Moore, 6 Wall 299 ; Parker vs. Gorton, 3 R. I. 27. But a bill 
 wanting in equity can derive no aid from an answer, and is liable to be dismissed 
 ou motion at any time, although the answer may disclose a case that would entitle 
 the complainant to relief, Lockard vs. Lockard, 16 Ala. 423 ; Sampley vs. Weed, 
 27 Ala. 621 ; 6 Wall. 275. 
 
 If an immaterial issue be submitted to a jury and th'^y rende'i- a verdict there- 
 ■apon', final judgment cannot be announcedupon the finding, but onlv a judg.nent 
 rf)f repleader, Trott vs. West, 1 Meigs. 163; Sullenberger vs. Gest, 14 O. 204: 
 jand the omission to find an immaterial issue is of no consequence. Thornton, vs- 
 ..Sprague, Wright (0.) 645 ; Ray vs. Clemens, 6 Leigh: 600. 
 
RimiT TO BEGIN. 95 
 
 Tvhich was an autioi^ of ejectment, tliu lessor of flie plaintiff 
 -claimed as the heir-at-law of H. B., the person last seized. A. 
 B., one of the defendants, was the son of T. B., brother of li. B., 
 iind he was undoubtedly heir-at-law to H. B., if he were legiti- 
 mate. Defendants proposed to admit that if the defendant A. B. 
 ^vero not legitimate, the lessor of the plaintiff was heir-at-law of 
 the person last seized, and then claimed the rig-ht to bo<rin, con- 
 tending that the legitimacy of A. B. was the only point in ques- 
 tion, and the affirmative of it lay on them. But Vaughan, B., 
 overruled this, and said that the question was whether the lessor 
 of the pilaintiff was heir-at-law to H. B., and that the affirmative 
 of it lay on the plaintiff; that it might turn out that the question 
 turned entirely on the legitimacy of A. B., but still it was not 
 on that fact, but on the heirship of the lessor of the plaintiff; 
 :and that, as the admission did not go far enough, the plaintiff 
 -should beo;in. 
 
 § 36. Again, in the case of Doe d. Tucker vs. Tucker,(«) lessor 
 
 of plaintiff in ejectment claimed as heir-at-law of J. T. Defend- 
 
 -*31 ant *claimed under a conveyance by J. T., and, offering to 
 
 .admit the heirship of the lessor, claimed the right to begin ; to 
 
 -which the plaintiff replied that that was not sufficient, as he 
 
 should also admit that the ancestor of the lessor of the plaintiff 
 
 had died seized ; and per BoUand, B. : " Unless the defendant 
 
 -admits the whole case of the plaintiff", the plaintiff is entitled to 
 
 begin." In the case of Turberville vs. Patrick,(i) which was an 
 
 -action of trover for goods, to which the general issue was 
 
 pleaded, it appeared that the action had been brought by order 
 
 of the Vice-Chancellor, in order to try the validity of a commis- 
 
 :sion of bankruptcy which had issued against the plaintiff, and 
 
 had ordered the defendant to admit the finding and conversion 
 
 of the goods. Defendant claimed the right to begin on the 
 
 ^iground that he was bound to admit the plaintiff's right to 
 
 fl-ecover, unless he could make out a case in answer. Sed per 
 
 (o) M. * M. -y.'.l\. (6) + C. & P. .W7 
 
96 RIGHT TO BEGIN. 
 
 Bosanquet, J. : " If the Vice-Chancellor had intended that this-, 
 action should not be tried in the ordinary way, he would have- 
 directed an issue, and have made the present defendant the plain- 
 tiff in the issue. Plaintiff must begin."(a) 
 
 § 37. We must, however, here notice the case of Thwaites vs.. 
 Swainsbury,(6) which was an action of assumpsit for goodsr- 
 sold, &c. ; and by a rule of court, which had been obtained by 
 consent, it was ordered that the defendant should admit the- 
 plaintiff 's case ; sed per Tindal, C. J. : " The plaintiff must begin 
 and state the case ; this is not like the case of an issue, proof of 
 the affirmative of which lies on the defendant. "(r) 
 
 It is, perhaps, hardly requisite to observe that in any action- 
 where the defendant pleads the general issue, the plaintiff must 
 begin, as that plea puts him on the proof of his case generally.(l)((?> 
 
 (a) See anie p. 12, n. 2. vs. Jennea, 21 Id. 232; BeUjnap vs. Wen- 
 
 (6) 5C.&r.69. aell, 21 id. 173. See ante p. ■&, 30. See- 
 
 (e) Seea»(ep. 12, II. 2 under tits. Assumpsit, Debt, Covenant, 
 
 (d) Bump vs. Smith,ll N.H. 48; Tappan Case, &e. • 
 
 1. It admits nothing on the merits, or which go to bar the action, Child vs- 
 Allen, 33 Vt. 475 ; Stroud vs. Springfield, 28 Tex. ; Eagsdale vs. Gohlke, 36 Id. 
 '286 ; although special pleas be pleaded with the general issue, the burden is on* 
 the plaintiff to prove his case, and he is entitled to open and close, Jennings vs. 
 Maddox, 8 B. Mon. 430, ante p. 29. It admits no immaterial matter of induce-- 
 ment, Bennison vs. Davison, 3 M. & ^y. 179 ; Green vs. Hill, 3 Ex. 801 ; nor 
 averments not traversable, G-ale vs. Lewis, 9 Q. B. 730 ; King vs. Norman, 4 0- 
 B. 884 ; Mitchell vs. Crasweller, 13 (!. B. 337. See Defamation, infra. 
 
 Plea of the general issue admits the character and competency of plaintiff to- 
 sue ; it admits the title of the plaintiff to sue as executor or administrator. Thy-- 
 une vs. Prothoe, 2 M. & S. ; Hunt vs. Stevens, 3 Taunt. 113; Curtis vs. Herric, 
 14 Cal. 117; it admits marriage in an action by husband and wife for battery of 
 the wife, Bullcr vs. N. P. 20 ; and admits plaintiffs are a corporation capable of" 
 suing, Concord vs. Mclntre, 6 N. H. 527. A plea of set-off stated that the 
 plaintiff made his promissory note payable to A. C, and that A. C.'s administra- 
 tor endorsed it to the defendant ; replication, that the supposed cause of set-off' 
 did not accrue to the defendant within six yeai-s ; it was held that the replication!, 
 admitted the making of the note and the endorsement, and that the defendant 
 might avail himself of the memorandum of the payment of interest written oiiv 
 the note by A. C. to bar the statute of limitation, G-ale vs. Caperer, 1 Ad. & E_ 
 102. After the jury have been sworn the defendant cannot, as a matter of rights 
 
RIGHT TO BEOIN. 97' 
 
 § 38. .As more grounds of action than one may, under certain 
 restrictions, be stated in the declaration, and as a defendant 
 *32 *may, with leave of a judge, plead several distinct and 
 even inconsistent matters to the same charge, it frequently hap- 
 pens that there are several issues arrived at on the record ; and 
 if so it is very possible that the onus probandi in some of then> 
 may lie on the plaintift', and in others on the defendant.(l) 
 Under such circumstances, the rule, which shall be more particu- 
 larly considered in its place, is, that if the onus of proving anj^ 
 
 1. In a written contract containing various undertakings, tlie plaintiff may 
 complain of the breach of one or of all, but, if he confine himself to one, he 
 admits the performance of the others, Chinn. vs. Hamilton, 1 Henist. 438, and the 
 court may, in its discretion, order one of the issues tried first, and decide as io 
 this particular issue who shall begin. In Bedell vs. Powell, 13 Barb. 184, Wright,, 
 J., said : '■ One branch of the defence interposed by the answer in this case wa;:; 
 the pendency of a former action. The reply denied that an action was pending- 
 for the same cause at the commencement of the suit, and alleged that prior 
 thereto such action was discontinued, of which the defendant had notice — thus 
 raising an issue of fact. After the jury had been impannelled, the judge, at the 
 suggestion of the counsel for the plaintiff, and against the objection of the 
 defendant's counsel, decided to try first this issue; thus, as the defendant com- 
 
 withdraw the general issue and assume the burden with the opening and closing. 
 It is within the discretion of the court. Mason vs. Seitz, 36 Ind. .516. See Tap- 
 pan vs. Jenness, 21 X. H. 230. It seems that statements made by parties in the 
 course of their pleadings in another action are not to be used as admissions by 
 them in a subsequent action, except where they are estoppels. A verdict and 
 judgment are conclusive upon any matter legitimately within the issue and lu'ci-s- 
 aiirili/ and directly found by the jury ; and when the record itself does not show 
 that the matter was nece.ssarily and directly found, evidence ali.ande consistent 
 with such records may be received to prove the fact. If the mattter was not 
 within the issue, and could not rightly have been litigated in the former action, 
 parol evidence will not be allowed to show that it was passed upon, Eoyce vs. 
 Burt, 42 Barb. 663 ; Appleton vs. "Warner, 51 Barb. 270 ; Wood vs. Jackson, 8 
 Wend. 9 ; Miles vs. Caldw.dl, 2 Wal. 36 ; Lawrence vs. Hunt, 10 Wend. 80 : 
 Gardiner vs. Buckbee, 3 Cow. 120 ; Burt vs. Sternburgh, 4 Id. 5.')9 ; Child vs.. 
 Allen, 33 Vt. 476. So a party may estop himself from reversing a judgment on- 
 error after he has pleaded the same in bar of an action. Wills vs. Ivane, 2 Grant 
 Cas. Pa. 60. A plea in a discontinued action is not evidence against defendant 
 ill another action. Allen vs. llarlley, J Doug. 20. 
 
■SS EIGHT TO BEGIN. 
 
 •vone issue lies on the plaintiff, he is entitled to begin. (1) ' For the 
 
 present, however, we will only consider the case of a single issue, 
 
 md proceed to illustrate the general rule, that the party on 
 
 whom the onus probandi lies is entitled to begin, by showing its 
 
 .-application in trials by jury and at the Quarter Sessions. 
 
 Section 2. 
 
 Of the Right to Begin in Civil Actions. 
 
 % 39. Civil actions, as is well known, are divided into real, 
 mixed and personal, in the first of which land only is demanded ; 
 in the second, land and damages; and in the third, damages 
 alone. There are, besides these, some other civil proceedings 
 ^vhich will require notice, such as proceedings on quo warranto, 
 ~&c. With respect to real and mixed actions, it is to be observed 
 that, though formerly very numerous, they have been, by statute 
 -3 & 4 Will. IV., c. 27, reduced to fom^ — ^writ of right of dower, 
 -writ of dower unde nil h%bf.t,{2) quare impedit, and ejectment ; the 
 Matter is not properly a mixed action, as it is in form a personal 
 
 1. Where one of the issues presented by the pleadings was, whether notes sued 
 -on were usurious, it was not error to deny the defendant's counsel the privilege of 
 ■opening and closing the argument, as to that issue. It is not usual thus to divide 
 Tthe issue. Cent. Bank vs. St. Johns, 17 Wis. 157. See ante p. 29; Jackson vs. 
 
 Pittsford, 8 Blackf. 194 ; Buzzell vs. Snell, 25 N. H. 474 ; Chisley vs. Chisley. 
 -3" Id. 229 ; Huntington vs. Conkey, 33 Barb. 218 ; L?x., &c., Ins. Co. vs. Paver, 
 16 Ohio 324. 
 
 2. The burden is on the demandant of dower of proving that she is the lawful 
 ■widow of the deceased, and it is not shifted by her establishment of a prima 
 
 _faci(i case, Nichols vs. Munsell, 115 Mas. 167 ; but dower itself will be favored 
 as against a devise or gift in lieu of, "Van Arsdale vs. Tan Arsdale 2 Dutch. 414. 
 
 plains compelling him to enter upon apart of his defence before the plaintiff had 
 ;gone through with his case. This, however, is not an error that can be reviewed 
 in a bill of exception. The order in which proof shall be received on a trial is 
 in the discretion of the judge, 1 Cow & Hill's notes, 710 to 720 ; 3 Barb. 407. and 
 is not reviewable on error or appeal. People vs. Baker, 3 Hill 159 ; Rapalye v,-. 
 JPrice, 4 Hill 119 ; Lansing vs. Rursell, 2 Oomst. 563 ; 6 Barb. 109." 
 
RKIHT TO BEGIN. 99!» 
 
 action of trespass,(«) as land is not demanded :n the original 
 writ, which by a fiction of law is supposed to be issued. The- 
 action of ejectment shall be fully considered in the sequel.(6) 
 *33 And in respect to the other three, little or nothing *is to- 
 be found in the books on the subject which we are here attempt- 
 ing to illustrate ; and were it even otherwise, it is doubtful 
 whether, from their rare occurrence, it would be worth while ta 
 do so in a small work like the present. Passing by, therefore., 
 the subject of real actions, we proceed to consider those which 
 are either personal or mixed. The essential point in which these- 
 dift'er from the former is, that in real actions, land (or some right 
 relating to land) is demanded eo nomine and alone : while in the- 
 latter, not only is some wrong or breach of contract complained 
 of or even laud demanded, but damages, either nominal or serious,. 
 are songht to be recovered for the injury brought. 
 
 § 40. Now, when on the issue raised by the pleadings the- 
 onus probandi lies on the plaintiff, he, of course, has to begin,.. 
 and prove at the same time the injury done and the quantity of 
 damage he has sustained thereby. (1) But in those cases where 
 
 (a) Steph. PI. 23, 4S (6) See infra Ejectment.. 
 
 1. -'And prove at the same time the injury done and the quantity of damages 
 sustained thereby," suggests a grave error. Damages being a question of law 
 are not the subject of a traverse, Jones vs. Lees, 1 H. & N. 194 ; Keindel vs_ 
 Scull, 4 Com. B. y. S. 117 ; Hale vs. Lawrence, 2 Zab. 79 ; Hogencamp vs. 
 Acorman, 4 id. 13(i ; Wood vs. Rowan, .5 Johns. 41 ; they are the legal effeet of 
 issuable facts of injury, Kramer vs. Stock, 10 Watts 115 ; Willes 581. They arcv 
 so purely a matter of law, that, whenever a wrong is done to a right, and though 
 no substantial injury be proved, nominal damages will be given in .support of the- 
 right, Whipple vs. Cumb. Man. Co., 2 Story 661 ; Bagby vs. Harris, 9 Ala. 173 :. 
 Browner vs. Davis, 15 Cal. 9 ; Devendorf vs. Werf. 42 Barb. 227 ; Bond vs. Hil- 
 ton, 2 Jones (N. C.) L. 149 ; Seal vs. Moreland, 7 Humph. 575 ; Paul vs. Slason, 
 22 Vt. 231 ; Munroe vs. Stickney, 48 Me. 462 ; in E. E. Co. vs. Mutherspaugh,. 
 
 71 111. 572 ; so it is held that a plea to the damages, non dariunficatus, is bad 
 
 on general demurrer, Clearwrter vs. Meredith, 1 Wall. 25 ; and Sutherland, J., in 
 McClure vs. Erwin, 3 Cow. 332, says : " The plea should go to the right of action, 
 not to the question of damages." He further says that non damnificatus is con-^ 
 fined to a single plea, viz., in a condition of a bond to indeni iit'fii and save harm- 
 less Archer vs. Archer. 8 Griitt. ^M). Sec c.i<c of Orafflin vs. Jackson c1 als... 
 
1(W KI&HT TO BEGIN. 
 
 the onus of proving the facts in issue lies on the defendant, still 
 the plaintiff has to prove the amount of his damages ; this is an 
 onus probandi which always lies on him,(l) and it becomes a 
 •question to determine which party has a right to begin ; in other 
 words, whether the mere onus of proving damages where the 
 onus of proving the facts in issue lies on the defendant, will 
 ■confer on a plaintiff the right to begin. 
 
 1. But the burden of damages has uothing to do with the burden of the issue 
 -which alone determines the right to begin ; damages arc a legal consequence of ii 
 legal recovery. The question of damages does not arise until a prima facir case 
 is made out, or testimony be given sufficient in law to authorize a judgment ; or, 
 in the language of Bayley, in Jackson vs. Hesketh. 1 42, infra, '■ the question of 
 damages never arises till the issue has been tried." .Such is the philosophy of 
 ■our system of judicial remedies that the amount of relief is not the subject of 
 primary controversy. All such questions are just as determinable after default 
 as before. The law is well stated in Watson vs. Seat, 8 Fla. 446 : " That a 
 defendant, against whom a default has been taken for want of a plea, is not 
 absolutely out of court, but still retains the right to appear upon an inquest nf 
 damages, to cross-examine the plaintiff's witness, to introduce evidence in miti- 
 gation of damages, and to address the jury thereupon," Loeber vs. Delahaye, 7 
 Iowa 478 ; 18 Mo. 604. The default leaves no issue for the jury, Smith vs. Bil- 
 lett, 15 Cal. 23, as it admits all remediable facts well set out in the declaration. 
 Eowe vs. Table, &c., Co., 10 Cal. 441 ; McGregor vs. Shaw, 11 Cal. 47—250 ; 
 Peck vs. AVilson, 22 111. 205 ; Whitty vs. Bongo, 9 Iowa 597. But sufferinj; 
 judgment liy default in assumpsit on a note admits a cause of action to the amount 
 of the note, unless part payment be endorsed, Greene vs. Heme, 3 T.E. 301 ; so if 
 there be a bill of particulars, Tiudall vs. Baskett, 2 F. & P. 644 ; Bonfield vs. 
 Smith, 2 M. & E. 519 ; Hayward vs. Radcliff, 4 P, & P. 500. But in an inquest 
 of damages, defendant cannot ask instructions touching his liabilitv, for that 
 
 criticised in 3 N. J. Law J. 267. Nominal damages only will be awarded liy the 
 law, when a special plea of payment is pleaded to the common courts in assump. 
 sit, if no evidence be given at the trial, N. Y. Dry D. Co. vs. M'Intosh, 5 Hill 
 290. The question of the right to begin deppnds upon the proper interpretation 
 of the material traverses, the legal issues ; the denial of indebtedness docs not 
 raise an issue of fact for this purpose, for indebtedness is a conclusion of law. 
 Smith vs. Sergent, 67 Barb. 243. See p. 2, n. 4. The test is, that such allega- 
 tions as may be stricken out, and yet leave the declaration good as to all matters 
 material to the right, are utterly insignifieant in determining the burden, and 
 hence the right to begin, anfc p. 2, 3. 
 
KK^HT TO BECJIN. 
 
 
 ^ 41. This is A qnestion so simple in its enunciation, and^jf 
 such importance and constant occurrence in practice, that on^*!:4dJ 
 would suppose it must have been settled in the very infancy of 
 •our law. Yet, as probably few points have given rise to more 
 conflicting and irreconcilable decisions than the present, and as 
 the judges in July 4, (Will. IV.,) 1833, promulgated a rule alter- 
 ing the practice in this respect in some particular forms of action, 
 leaving it untouched in others, it becomes imperatively nec'bssary, 
 to a right understanding of the subject, to enter fully into the 
 =*34 consideration of the cases '"'which were decided, and the 
 doctrine which prevailed previous to the making of that rule, 
 and then to consider both the rule itself and the cases wViich 
 have been decided in illustration of it. 
 
 § 42. The first case which seems directly to bear on this sub- 
 ject is that of Hodges vs. Holder,(tt) which was an action of 
 trespass qiuirr clansum fregit, to which the defendant pleaded a 
 right of way, and was by Bayley, J., allowed to begin. The 
 next, which is quite in accordance with it, is that of Jackson vs. 
 Hesketh.(/yj This, also, was an action of trespass quare clnnsum 
 J'regif, to which defendant pleaded a public right of way ; and 
 per Bayley, J. : " The party idKo has to -prove the affinnaHir af the 
 ^ssitf ought to begin ; the question of rJamage-^ nerer arises iiU the isxiw 
 ims been frird."(f^ 
 
 % 43. The next two cases appear inconsistent with these. In 
 Robey vs. Howard,('^Z) which was an action against a party who 
 
 (a) 3 Camp. .Jeo. in dissenting opinion, affli'ms the doc- 
 
 (6) 2 Stai'k. 518. trine in Sutton vs. Mandeville, 1 Cv. C. C. 
 
 (c) The principle of this case can liai-aiy J87. See, further, in/ra tit. Case. 
 
 t)e disputed. See ante § 40, n. 1,2, Vlele vs. (d) 2 Stark. 555. 
 
 Germ. Ins. Co., 2() Iowa U. Justice Cranch, 
 
 is settled liy the default, Loebcr vs. DeLahayc, supra, nor can lie insist upon the 
 fraud of the plaintiff, as that relates to the liability settled by the default, East 
 lad. Co. vs. Glover, 1 Stra. 612. The default should be opened. Courts exercise 
 e«:[uitable jurisdiction over judgments entered by warrants of attorney, wherein 
 estoppels by specialty do not arise, by awarding a feigned issue to try the fraud, 
 letting the judgment stand, Barrow vs. Bispham, 6 Halst. 117 ; 2 Id. 199 ; 
 Barnes' Xotes 277 ; 2 Johns. Cas. 258. See ? 45, infra, n. 1. 
 
102 RIGHT TO BEG»N. 
 
 had undertook to lay out for the plaintiff" a sum of money in 
 good security, but was alleged to have taken an insufficient one, 
 to which defendant pleaded in abatement the non-joinder of one- 
 G. D. as defendant. Lord Chief Justice Abbott said : " The plain 
 tiff" must begin, since at all events it is hinunhent on him, to prone his^ 
 damages."{l) And in Laeon vs. Iiiggin8,(a) which was an action 
 of assumpsit to recover a large sum of money, the amount of 
 millinery supj)lied to the defendant, and the only plea was cov- 
 erture, the same learned judge said : ^'As the j)lainti,ff had to prove' 
 the (uiwunt of his damages, he loas entitled to begin. "(2.) 
 
 § 44. These cases, however, are perhaps reconcilable with 
 those of Hodges vs. Holder,(6) and Jackson vs. Hesketh.{e) In 
 these latter the actions were manifestly brought to establish a 
 right to some lands, and not for the pui'pose of recovering- 
 *35 *any heavy damages ; while in Robey vs. Howard,(6?) andi 
 Lacon vs. Higgins,(e) the damages sought were considerable, and 
 the sole gist of the action. The cases of Hodges vs. Holder,(/) 
 and Jackson vs. Hesketh,(c) seemed to have completely settled! 
 the position that when the action, though in form brought to* 
 recover damages, is in reality instituted in order to try a con- 
 tested right, and only nominal damages are sought in order tO' 
 establish that right, and the onus proband! lies on the defendant,, 
 he is clearly entitled to begin. 
 
 (o) 3 Stark. 167. (c) 2 Stark. 5]8. (e) 3 Stark 178. 
 
 (6) 3 Camp. 366. (<«) 2 Stark. 555. (/) 2 Camp. 366. 
 
 1. This is ciToucous. On the trial of an issue on a plea in abatement, the- 
 (lei'endant who pleads it has the burden of proof, and, as a consequence, has the- 
 right to open and close, Jewell vs. Davis, (i N. H.518 ; Shepard et al. vs. Grave.-*. 
 14 How. 505 ; Powlor vs. Byard, 1 Hemst 213. See, further, infra, I 46. 
 
 i. But in an action of debt for goods sold and delivered, and account statedl 
 on the simple plea of coverture, defendant begins, Woodgate vs. Potts, £ Car. k 
 Kir. 458 ; so held when the action is on a promissory note, Cannam et al. vs. 
 Parmer, id. 747 ; and in assumpsit if there be a bill of particulars, and there be 
 an express admission at the trial of the amount claimed in the bill and the pleas 
 be affirmative only ; even though the claim be for unliquidated damages the- 
 defendant should begin, Roscoe's X. P. 27() ; Tindall v.s. Baskatt, 2 P. k P. 044: 
 Boulield vs. Smith, 2 M. & R. 519. 
 
RKIHT TO BEGIN. 103 
 
 § jJ:5. The next case, however, went a step farther ; it was that 
 of Bedell vs. Eus3el,(ffl) and was brought for assaulting, beating 
 and shooting at the plaintifl", on divers occasions ; to which 
 defendant pleaded, that he was a captain of a ship on board of 
 which plaintiff was a mariner ; that the latter was engaged in 
 mutiny, in order to suppress which the trespasses mentioned wei-e 
 committed : replication, de injuria, kc. : defendant claimed the 
 right to begin, and cited Hodges vs. Holder,(6) and Jackson vs. 
 Hesketh ;{f) to which it was urged for the plaintiff, that tliose 
 were cases of trespass quarc tl/iusum fj-C(jif, where certain rights 
 were in question ; that here the essence of the inquiry was a 
 claim of damages : and Best, C. J., said : " But for the authorities 
 cited I should certainly have thought that the onus of pro\-ing 
 damages sustained gave a right to begin ; but as it is of the utmost 
 consequence that the practice should be uniform I shall consider 
 myself bound by those cases till the matter shall be settled in full 
 court."(l) IsT. B. Robey vs. Howard (/i) and Lacon vs. Higgins (e) 
 
 (a) E. & -M. S93. (6) 2 Camp. 366. (c) 2 Stark. 618. (d) 2 Stark. 5.i5. (e) 3 Stark. 167. 
 
 1. This case, no doubt, presents the rule correctly, and is followed, generallj-, 
 in this country ; and whenever justification or son assault is pleaded, simply, the 
 defendant has the- right to open and close, McKinzie vs. Milligan, I Bay (S. C.) 
 248 ; Goldsbury vs. Slatterville, 3 Bibb. 345 ; Downey vs. Day, 4Ind. :>'i ; Yance 
 vs. Vance, 2 Mete. (Ky) .5sl ; Coleman vs. Hagerman, .5 City H. E. (N. Y.) 63. 
 The case of Young vs. Highland, 9 Gratt. 16, appears to be the foundation upon 
 which the learned Dr. Minor (4 Minor's Inst. 6.30) lays down the rule th it in 
 Virginia, in any case of unliquidated damages, whether the action be t-x dclicla 
 or ex contractu, the plaintiff must begin. The court say, in Young vs. High- 
 land : " The only plea in this case was son assault demesne ; to which the repli- 
 cation was de injuria. The plea u.-es the same general language as the declara- 
 tion docs, and professes to refer to the same assault and battery. It would have 
 been sustained by proof of any assault made by the plaintiff on the defendant, 
 followed immediately by an assault and battery of the defendant on the plaintiff, 
 and the plaintiff could not have avoided that consequence by showing that thi' 
 declaration and replication were both intended to refer to a different assault and 
 battery. The plaintiff, by replying di. injuria, admits that any assault and 
 battery which the defendant may justify by proving that the plaintiff m.idj l\v.' 
 first assault, is the assault and battery for which the actini is brought. If, i\\yc.i- 
 
 8 
 
104 RIGHT TO BEGIN. 
 
 seem to luive escaped the observation of all parties, or certainly 
 the Chief Justice would have decided the other way. We shall 
 have occasion to recur to this case presently. 
 
 § 46. The damages, however, which a party seeks to recover, 
 *3(:i may although serious in themselves, be so completely "-"defined 
 by the form of the action, that the plaintiff is either entitled 
 to recover to the amount stated in the declaration or not at all y 
 and such damages are said to be liquidated in contradistinction to 
 those which are left uncertain, and to be assessed by the jury, and 
 are therefore called unliquidated damages. The distinction between 
 these two species of damages as affecting the right to begin, came 
 
 fore, several assaults and batteries are comraittecl by the tlefendaut on the plaint- 
 iff, and anj' of them can be justified, the plaintiff ought either to have in his dec- 
 laration as many counts as there were assaults and batteries ; or, if he has but 
 one count, and the plea is son assault demesne, he ought to reply by way of new 
 assignment. Otherwise a verdict must be rendered against him, though he may 
 be able to prove, and actually prove, that other assaults and batteries were com- 
 mitted on him by the defendant which cannot be justified." 
 
 This case is unsound in two respects. First — The resolution of the general 
 pleading in the case is not in accordance with authority, i. e., the inherited Eng- 
 lish authority that it assumes to expound. Second — The right to begin is made 
 to depend upon the possible aspects of th? proof, rather than the actual state of 
 the pleadings independent of proof. 
 
 As to the former, Bayley, J., says, in Barnes vs. Hunt, 11 East. 456 : " The 
 declaration is general — complaining of trespasses on divers days within a certain 
 period. The defendant undertakes to meet that general and indefinite charge, 
 and says, in effect, that whatever may be the number of trespasses that the- 
 plaintiff complains of within that period, he is prepared to show as many licenses. 
 The replication states that the defendant, at the several days, committed the 
 said several trespasses of his own wrong, and without the cause alleged. What 
 does that put in issue, but that the defendant had a license to cover all those- 
 trespasses? Then, in common sense and understanding, we must take it that the 
 cause put in issue by the replication is, that the defendant had not a license co- 
 extensive with the trespasses complained of, and a new assignment could have 
 done no more than repeat the same thing." Lord EUenborough, C. J., concurred! 
 in an opinion covering the same points, and, among other things, said : " What,, 
 then, does the replication import when it alleges that the defendant, of his own 
 wrong, and without the r;iusa alleged, committetl th-." several tre-ipasses ? It 
 
RIG]1T TO BEGIN. 1 05 
 
 betbi-e the court in the case of Fowler vs. Coster. (a) This was an 
 action of assumpsit, brought by the ])]aintiff, as indorsee, against 
 the defendant as acceptor of two bills of exchange ; the declara- 
 tion also contained the common money counts. Defendant pleaded 
 in abatement/6j that the promises, if any, were made jointlyjwith 
 one C. ; and on this issue was ultimately joined ; and Lord Ten- 
 terden, C. J., said : " It would be incnuvenient to say in all cases 
 that the plaintiff should begin when he is to recover damages ; 
 
 (a) JI. & M in : 3 C. & P. 4ii3. (b) See § 43, n. 1, supra. 
 
 deuics the defendant's justification to tVie extent pleaded by liiiii ; it denies that 
 he had license to commit the several injuries of which the plaintiff complained 
 and is able to prove tvithin tht terms of his declaration. Whatever practice may 
 have prevailed, this sense of the pleadings appears to me to be clear." In Adams 
 vs. Andrews, 15 Ad. fr Ell. (N. 8.) 20li, the above case is distinctly affirmed. 
 The learned judge, in delivering the opinion in Young- vs. Highland, misinter- 
 preted the pleadings by overh.ioking the issue— the only issue in the case which 
 was formed by the plea of son assault, &c., and the replication. The replication ' 
 was. in effect, a general issue plea to the affirmative plea of son assault, &c. The 
 point of error in the case is that the court lay down in the rule that evidence, 
 under the de injuria replication, will be confined to the trespasses justified by 
 the plea which may or may not reach all that are provable under the declaration ; 
 while the true rule, as laid down by EUenborough, is, that the plaintiff can, under 
 - this replication, prove all the trespasses that he " is able to prove within the 
 terms of the declaration,' Hannen vs. Edes, 15 Mass. 351 ; 7 Eob. Pr. 687. 
 If, then, it be the law upon authority, that a justifying plea of son assault, 
 &c., claiming to comprehend all the trespasses in the declaration, must in fact 
 and in law cover all that can be proved under the declaration, at the peril of 
 having the plea disproved on the general replication by any facts provable under 
 the declaration, the case of Young vs. Highland is of unsound tissue. 
 
 There are some eases that intimate that the testimony on the general replica- 
 tion to a plea of son assaidt will be confined to matters set up in the plea itself. 
 But one of the averments is qux est uadnn — that it is the same trespass as in 
 the declaration mentioned. Testimony in denial of this fact is certainly rele- 
 vant ; and the plea would be certainly overcome by proving a trespass within the 
 le^al purview of the declaration not justified by the plea. The second point of 
 
 MTor the basing the right to begin on the possible conditions of proof, instead 
 
 of an interpretation of the pleadings independent of the proof— .see ante ^ 3, 5, 
 10, notes. 
 
106 EIGHT TO BEGIN. 
 
 that is the case in trespass where there are only special pleas on 
 the record, yet the defendant usually begins." 
 
 § 47. The counsel for the plaintiff then argued, that in the 
 class of eases alluded to by the judge, the damages are merely 
 nominal, and the right is really the only qusstion in issue ; that 
 here the plaintiff had to prove the amount which he is entitled 
 to recover ; and even if it should be said that there can be no 
 dispute as to the amount due on two bills of exchange, yet there 
 are other counts in the declaration, (viz., the common money 
 counts,) on which an uncertain amount of damages be recovered, 
 and the court could only look at the record in deciding such a 
 q^uestion as the present ; besides, that it was of importance to have 
 one rule, and not to make the course of practice different, as the 
 cause of action might happen to be on a bill of exchange, or an 
 account for goods sold, &c. But Lord Tenterden said : " It cer- 
 tainly is of importance that there should be a distinct general 
 *37 rule ; but *that rule need not be the same for every case, if 
 it be such that its application is clear. ISo rule, probably, can be 
 free from occasional inconvenience, but I think this is sufficiently 
 general, and on the whole the most convenient; that whenever it 
 appears on the record or by the statement of the counsel engaged, 
 that there is really no dispute about the sum to be recovered, but 
 the damages are either nominal or else mere matter of computa- 
 tion, then, if the affirmative of the issue is on the defendant, he 
 is entitled to begin." 
 
 § 48. There can be no doubt as to the correctness of the decinon 
 in this case, so far as it goes : viz., that where the damages sought 
 to be recovei-ed are either quite nominal, in order to try a right, 
 or, though heavy, are so completely liquidated that there can be 
 no question as to their amount, the defendant is entitled to begin, 
 if the onus probandi of the issue lies upon him. But the propo- 
 sition impliedly laid down in it, that the damages being the object 
 of the action, and unliquidated, throws such an onus probandi on 
 the plaintiff as to give him the right to begin, received an express 
 negative in a case decided by Lord Tenterden himself, aided by 
 
RIGHT TO BEGIN. 107 
 
 three other judges, a very few days after that of Fowler vs. 
 Coster.((/) 
 
 § 49. The case alluded to is that of Cooper vs. Wakley, (3 C. 
 & P. 474, M. & M. 248, and also a printed report, Dec. 12, 1828.) 
 This was an action brought by the plaintifi" as surgeon to Guy's 
 hospital, against the defendant as editor of a medical and surgi- 
 cal periodical, for a libel on his professional character. Foii 
 counts of the declaration charged different parts of the alleged 
 libel, in which defendant criticised a certain surgical operation 
 which had been performed by the plaintiff, and imputed to.him 
 for want of skill, &c. The fifth count charged a distinct libel, 
 which professed to be a reply by the defendant to some newspa- 
 *38 per statements, which alleged that the *plaintift" had taken 
 up unnecssary time in performing the operation, and also that 
 he had been placed in his situation of surgeon to Guy's hospital 
 through favoritism and corrupt influence. There were seven 
 pleas, four of them justified the allegations of the libel, and 
 imputed to the plaintifi" unskilfulness in the operation, and asserted 
 that a skilful surgeon would under similar circumstances have 
 performed it in a much shorter time, and that the patient's life 
 was probably sacrificed to such unskilfuluess. h\ two more pleas, 
 the defendant justified those parts which stated that the plaintifi" 
 had been elevated through corrupt infiuence; and the seventh 
 plea stated that he, as an editor of a medical periodical, published 
 the alleged libels, they being correct reports of what had occur- 
 red. Replication, df iiijiirla. Defendant claimed the right to 
 begin, and cited Hodges vs. Ilolder,'/^) Jackson vs. Iiesketh,(fj and 
 Bedell vs. Russel ■,{(!) to this the plaintifl'"s counsel replied — 
 1. That the affirmative lay on the plaintifi". 2. That the damages 
 were unliquidated, and therefore gave the plaintifi" a right to 
 begin ; that the allowing the defendant to do so would totally 
 alter the situation of the parties, and put the party who came 
 into court to complain of a malicious libel in the situation of a 
 
 (a) M. & M, 241. (6) 2 Camp. 306. (c) 2 Stark. 618. {d) U. & HI 293. 
 
108 RIGHT TO liElilX. 
 
 defeiiiliiiit on triiil on a charge against hiniseU'. That of the cases 
 which had been cited, two were c^uestions of right, witliout any 
 claim of damages, and the third, Bedell vs. Russel,^^) was decided 
 by the judge against his own conviction, conceiving hirnself 
 bound by the authorities. Lord Tenterden then consulted JJ. 
 Bayley, Littledale and Farke, and all four were unanimously of 
 opinion that the defendant had a right to begin ; and Lord Ten- 
 terden said: "The general rule is, that the party on whom the 
 affirmative lies has a right to begin ; and in one at least of the 
 cases cited, viz., Bedell vs. Russell,'//) the plaintifi" was seeking 
 *39 to recover unliquidated damages. The ^affirmative here is 
 on the defendant, as he must make out the assertions he has 
 made." 
 
 ,§ 50. This case, together with that of Bedell vs. Russell,'(«) 
 establish the position that the onus of proving unliquidated dam- 
 ages, even in cases of assault and libel, (the two worst species of 
 civil injuries to the ]ier-^oii^ does not confer a right to begin. That 
 it does not do so when unliquidated damages are sought in respect 
 of injuries to prnpeiii/, was established by the subsequent case of 
 Cotton vs. James. (/;) This was an action of trespass, containing 
 one count lor breaking the plaintiff's house and taking his goods, 
 and a second for taking his goods and converting them: defend- 
 ant pleaded a justification, that the plaintiff had been declared a 
 bankrupt on the iietition of the defendant, and that the messen- 
 ger from the commissioners of bankrupt entered and took the 
 goods by virtu3 of their warrant, before any assignees were 
 chosen. The replication traversed the bankruptcy within the 
 meaning of the statue. Defendant claimed the right to begin, 
 and cited Cooper vs. Wakley -.{r) and per Lord Tenterden: "The 
 rule established in practice is, that when the general issue is not 
 pleaded, and the affirmative of the issue lies on the defendant, 
 he is entitled to tegin. I do not eay that this is the most con- 
 venient rule ; I am by no means sure that the practice is founded 
 
 (ff) U. & M. 2'.i3. (6) 3 C. & P. r<r, : M. & M. 27J. (c) 3 C. <fe P. 474. 
 
RIGHT TO liLUIK. 10!) 
 
 ■on the best priuciijle. but it is estulilisbed, ;nul [ do not think I 
 ought to depart from it."(l) 
 
 § 51. The cumulative eftect of Bedell vs. Russell,(a) Cooper 
 vs. Wakley/6) and Cotton vs. James//-) seems effectually to over- 
 rule the earlier cases of Eobey vs. Howard, (c^) and Lacon vs. Hig- 
 gins,'e) especially when we recollect that all of them, with the 
 exception of Bedell vs. Russell,(«) were d-ecided by the same 
 *40 judge. *Besides, however, being classed into liquidated 
 and unliqnid;'.ted damages, are subject to another division. The 
 plaintiff may, in his declaration, either simply state the wrong- 
 ful act^ done by the defendant, and claim damages generally on 
 that account, when as the law presumes that whenever a wroug- 
 
 (a)R&M,-:n:. (&) :! C. .v p. JT-I. {c) ■■'•€& I'.rm. (rf) 2 sunk. 555. (e) ;; Stavk. ]7S. 
 
 1. Ill Chapman vs. Raw^mi. H (^. B. 073 ; 10 .Tur. :is7, the case was "trespass 
 'for breaking and entering- the close of the plaintiff and desti-oving u dam therein.' 
 Plea, that the defendant was possessed of .1 mill, and that a stream of water ol' 
 right flowed thereto, and justified the trespass, because the dam was obstructing 
 the flow of the water to dercndaut's mill, ll.'plication traversing the right of 
 the stream of water. On the trial bel'ore Tindal, C. J., at the last assizes for 
 Lincolnshire, Whitelrurst, tor the plaintiff, claimed the right to be:^-in on the 
 ground that the damages were unascertaiLied. The Lord C. J. asked whether 
 the plaintiff wont for sull^tantiai damages. Whitchurst stafed, that tlie plaintiff 
 sought to recover some damages for the obstruction of the stream of water. The 
 Lord Chief Justice said his opinion was, that the amount of damages in this case 
 would not be a true criterion of the riglit to begin. The jurj' found a verdict 
 for the defendant. Whitehurst now moved for a new trial on the ground of^ mis- 
 direction. [Patterson, .1 The rule which my brother Alderson laid down was. 
 that the party against whom verdict would be, if neither gave any evidence, is 
 the party who ought to begin, Anms vs. Hughes ; in some (;ases that is a very 
 .good one.] The correct rule has been since laid down in INfercer vs. Whall, 5 (}. 
 B. 447 ; 9 Jur. .'376, that whenever, looking to the record, there is anything to be 
 proved by the plaintiff, he is entitled to begin. Lord Dennraan, C.J "The 
 more simple course, perhaps, in that case, would have been to have said, that the 
 alBrmatiye issue was upon the plaintiff to the e.xteut of his damages. The view 
 •which the Lord Chief Justice took is a very reasonable one ; and, if the counsel 
 for the plaintiff will not undertake to say that the plaintiff seeks to recover-sub- 
 stantial damages, the judge must say, that the plaintiff do;^>s not pro3eed for 
 damages, and then the issue is not upon the plaintiff." 
 
110 KIGHT TO BEGIN. 
 
 ful act has been done, some damage has accrued, it will be left to 
 the jury to determine the quantum which has necessarily resulted 
 from it in the case before them ; and this is called claiming gen- 
 mil damages. 
 
 § 52. But it frequently happens, that in addition to this gen- 
 eral damage, which the law will thus imply, some special mischief 
 has happened to the plaintiff in consequence of the illegal con- 
 duct of the defendant, though not necessarily resulting from it, 
 and compensation for which therefore cannot be given by the jury 
 unless expressly claimed in the declaration, and proved by evi- 
 dence to have occurred ;'a) and it might be made a question 
 whether, although the onu^ of proving general damages did not 
 confer a right to begin, as established by the three last cases, the 
 onus of proving special damages might not have that effect. This 
 
 (a) Dixon, J., in Luce vs. Jonep, Vi Vr. audi privation, umy, if alleged in the 
 
 709, says: "The true principle is, that pleaflings, be proven to augment the 
 
 when personal property, in the actual damages beyond the mere value of the 
 
 use of the owner, is injured or taken hy a thing taken, or the deminution in value 
 
 trespasser, so that the owner is deprived of the thing injured," Post vs. INIunro, 1 
 
 of the use of it, the special damages nee- South. 61; WooUey vs. Carter, 2 Halst. S.>. 
 essarily and iDroximately attendant upon 
 
 Patterson, J : "I am also of the opinion that the Lord Chief Justice was cor- 
 rect. If damages were not the real matter in dispute, the issue clearly lay on, 
 the defendant." Williams and Weightman, .JJ., concurred. Rule refused. In 
 Ashton vs. Perkes, 9 C. & P. 231, Patterson, .1., said : " There was a case [refer- 
 ring to Burrell vs. Nicholson] where a party brought an action of trespass 
 against the defendant for taking his goods, and the defendant justified under a 
 warrant of distress for a poor's rate. There the plaintiff must, as in the present 
 case, have had to prove the value of the goods ; but there it was held that the 
 defendant should begin, the real question in the cause not being the value of the 
 goods, but whether the plaintiff was ratable or not. I shall act upon that case." 
 This was trespass for taking plaintiff's goods. The defendant pleaded, first, as to 
 part of the goods, that he took them as a distress for annuity payable to M. A. ; 
 and, second, as to the residue, he justified the taking as a distress for rent due to 
 J. A. Replication to the first plea that the annuity was not in ari-ier, and to the 
 second non tenuit. Defendant was ruled to begin. In an action for wrongfully 
 dismissing a teacher in a school before the expiration of the year for which he was 
 engaged, the defendant pleaded only a plea justifying the dismissal upon which 
 issue was taken. Held, that the defendant was entitled to be-in, Harnett vs. 
 Johnson, 9 C. & P. 206. See ante pp. 99, 100. 
 
RIGHT TO BEGIN. Ill 
 
 point was raised in Fish vs. Travers.(rt) This was an action of 
 trespass for shooting a dog, and the declaration charged certain 
 specific damages to which the plaintiff was put thereby. Defend- 
 ant pleaded in justification that the dog was accustomed to bite ; 
 and claimed the right to'begin, citing Cooper vs. Wakley,(/^) and 
 Cotton vs. James.(c) The plaintift''s counsel then contcsnded that 
 the allegation of special damages distinguished this case from 
 those cited, as in them the damage was only consequential, and 
 the plaintiff could have no evidence to give on the subject. But 
 Best C. J. said : " I cannot see any distinction between the two 
 kinds of damages, and the defendant must begin."(<:0 
 
 § 53. ■■■'There, is, however, a case to be found subsequent *41 
 to the preceding ones, which, if the report of it be correct, and 
 the decision in it a right one, completely overturns the position 
 here sought to be established, viz., that the onus of proving dam- 
 ages does not of itself confer a right to begin. The case alluded 
 to is that of Morris vs. Lotan.(e) This was an action of assump- 
 sit for goods sold, &c., to which the defendant pleaded in abate- 
 ment the non-joinder of several contractors, on which issue was 
 joined.(l) Defendant claimed the right to begin, and cited Cot- 
 
 (a) .'i C. & P. 578, and afBrmed in Belnap (e) 3 C. & P. 505. 
 V3. Wenaell, 1 Fos. (N. H.) 181. (d) See subject discussea uiiiler Case 
 
 (6) 3 C. & P. 474. (e) 1 M. & K. 233. 
 
 1. This case, together with Fowler vs. Coster, being on pleas in abatement, can 
 hardlj- be said to contribute anything to the learned author's argument. He has 
 no doubt overlooked their peculiar character which necessarily makes them, 
 affirmative pleas independent of damages. 
 
 The moment the plea is interposed, the defendant, having by the plea con- 
 fessed a cause of action, depends upon his plea to keep judgment liy default from 
 being taken against him. If he sutains his plea, the judgment is that the suit 
 abate, Larco vs. Clements, 30 Cal. 132. And common sense dictates that this 
 
 A defendant being a tax collector, in trespass for executing his warrant for 
 taking the goods of the plaintiff, who pleads the general issue and files a brief 
 statement in defence, has the right to open and close, Bangs vs. Snow, 1 Mass. 
 182. Sedgwick, J., said : " The present mode of proceeding is, by the statute, a 
 substitute for special pleading ; the defendant takes the affirmativs and acknowl- 
 edo-es everything the plaintiff has to prove.' See Ayer vs. Austin, (J Pick. 22"). 
 
112 RiailT TO BEGIX. 
 
 too VS. James, (//) But Denman, C. J., said, thiit '• he recollected 
 being in a case subsequent to that before Lord Tenterdeu, in 
 which it was decided that the plaintiff should begin unless the 
 damages were admitted. That he was aware of the difference in 
 the decisions, but that his opinion was that the plaintiff should 
 begin." 
 
 § 54. ^ow here it must be remarked, that as the case alluded 
 to by the Lord Chief Justice is not before us, we can form no 
 judgment as to its applicability to the question under considera- 
 tion ; and as to the case of Morris vs. Lotan (/) itself, it cannot be 
 now considered as an authority, for the following reasons.(6) First, 
 it was decided by a single judge, and is in express defiance (for 
 to reconcile them seems altogether out of the question) of faur 
 others, Bedell vs. Russell,(c) Cooper vs. Wakley,(rf) Cotton vs. 
 James,(a) and Fish vs. Travers,(c) one of which (viz. Cooper vs. 
 W"akley)(^) was decided by four judges; and in another (viz.. 
 Cotton vs. James)(a) the practice on this iDoint was declared by 
 Lord Tenterden to be settled. But if it be said the case of Mor- 
 ris vs. Lotanf/) is more recent than those mentioned, and for that 
 reason entitled to tlie greater weight, it may be observed that 
 the case of Morris vs. Lotan,(/') if correctly decided, establishes 
 this, that the onus of proving damages (at least such as are uniiqui- 
 *42 dated) a?zya?/s confers on the plaintiff aright to* begin ; now 
 it will presently be seen, that since the decision in that case the 
 whole fifteen judges have come to a resolution that the practice 
 in this respect required to be altered, and that the onus of prov- 
 ing unliquidated damages should, /or the future, at least in some 
 ■cases, confer a right to begin ; whereas, if Morris vs. Lotan(/) 
 were correctly decided, not only would such a rule be perfectly 
 
 (a) 3 C. & p. 505. (c) E. & M. 293. (e) 3 C. & P. 57S. 
 
 (6) Vide § S9. (d) 3 C. & P. 474. (/) 1 M, & R. 233. 
 
 plea must be disposed of before the merits can be considered ; and in case the 
 plea fail, the plaintiff can then require the jury to sit and assess his damages ; so 
 it is settled that pleas in abatement are considered as affirmative pleas, Eo^co^s 
 NT. P. 27G. Sec ante \ 43, p. 102, n. 1, and ivfra \l 85, 89. 
 
RIGHT TO liElilX. 113 
 
 luicratory, but it avouJcI follow that alt the juili,^es had taken an 
 ■erroneous view of the then existing practice. 
 
 § 55. And should all this be deemed insuiiicieut to destroy 
 the authority ot that case it is to be recollected that in another 
 ■case subsequent thereto,' but prior to the new rule, viz. that of 
 Wood TS. Pringle,(a) where an action was brought for a libel, to 
 which the defendant pleaded to some parts a justification, and as 
 to the rest sufiered judgment to go by default, Lord C. J. Den- 
 man himself said, " that as there were parts of the publication on 
 ■which no issue had been joined between the parties, but judgment 
 had been signed by default for want of a plea ; that as to those 
 parts of the case, the plaintifi' was entitled to begin by showing 
 the amount of damages he had sustained, and havintj; the.risht 
 to begin '/>■ to 'part he had the general right to begin. "(A) Now 
 if the case of Morris vs. Lotan(f) had been correctly decided, 
 this distinction would have been altogether unnecessary, as the 
 plaintiff', having to prove his damages, would have had the gen- 
 ■eral right to begin as to the whole, notwithstanding the pleas of 
 justification. 
 
 § 56. Rejecting, therefore, the case of Morris vs. Lotan for the 
 rabove reasons, and collecting together the various points estab- 
 lished by the preceding decisions, we arrive at the following gen- 
 ■eral rule, which it is conceived can he supported to its fullest 
 extent, viz. : That with the exception of those cases provided for 
 *43 by the rule of July, 1833, *to be mentioned presently, the 
 meue onus of pi'oving damages, whether nominal or real liqui- 
 •dated or unliquidated, general or special, does not of itself confer 
 ■on the plaintiff a right to begin, when the onUs of proving the 
 facts in issue lies on the defendant." 
 
 § 57. This general principle being established, we will now 
 
 fa) 1 M. & E. 277. pleaded iilono; and the admissions, fx. 
 
 (&) Vide § 70, n., and Tliurstou vs. Ken- p!'es9 or implied, in one plea, canno!, be 
 
 -nett, 2 Fost. (N. H.) l.TO ; Buzzell vs. Snell, used as evidence against the party upon 
 
 -5 id. 479. Tliese cases are but the recog- other issues, Cilley vs. .Tenness, 2 .M. 11, 
 
 nition of the common principle that 89: Chapman vs. Sloan, id. 467. 
 
 where several pleadings ai'e filed, they (c) 1 M.- * I{. 2.'):!. 
 are to be tried precisely as if each was 
 
114 RIGHT TO BEGIN. 
 
 proceed to consider the rule (1) which was pi;omulgated in the case 
 of Carter vs. Jones,(a) by Tindal, C. J., as the result of a resolu- 
 tion which had been come to by all the judges, July 6, 1833, 
 This may be considered as a species of statute law on the subject,, 
 for all cases not coming within this new regulation are still gov- 
 erned by the principles above established, Burrel vs. ]Sricholson,(6) 
 Reeve vs. irnderhill,(c) Lewis vs. Wells,((i) Wooten vs. Bar- 
 ton.(e) The rule in question was not promulgated by writing,, 
 and unfortunately the two reports which we have of this case in 
 which it was first mentioned, although they agree in its general 
 features, yet differ most materially in the extent which they 
 attribute to it. 
 
 § 5,8. In 6 C. & P. 6i, the words of Tindal, C. J., are given 
 thus : " The judges have come to a resolution that justice would 
 be better administered by altering the rule of practice, and that 
 in future the plaintiff should begin in all actions for personal 
 injuries, also in libel and slander, notwithstanding the general 
 issue may not be jDleaded and the affirmative be on the defendant. 
 It is most reasonable that the plaintift' who brings his case into 
 court should be heard first to establish his complaint." In 1 M> 
 & R. 281, it is thus: " A resolution has recently been come to by 
 all the judges, that in cases of slander, libel, and other actions, 
 where the plaintift' seeks to recover actual damages of an 
 *4-t unascertained *amount, he is entitled to begin, although 
 the affirmative of the issue may, in point of firm be with the 
 del'endSnt." 
 
 § 59. Owing to the discrepancy between these reports we must 
 endeavor to collect the extent of the rule from the cases which 
 
 (a) 6 C. & P. Ijl ; 1 M. & R. 231. {dl 7 C. & P. 221. 
 
 (6) B C. & P. 202; 1 M. & R. 30i. (e) 1 M. & R. 61S. 
 
 (c) C C. & P. 772 j 1 M. & B. UO. 
 
 1. This rule has not been adopted in this country, Judge vs. Stone, 44 N. H. 
 G06 ; 1 Monell's Pr. X. Y. 647 ; Davis vs. Mason, 4 Piclv. 136 ; Sawj'er vs. Mer- 
 rill, 6 id. 480 ; Veiths vs. Hagge, 8 Clarke (Iowa) 163. Measuring the damages 
 docs not effect the burden, Lees vs. Felt, 11 Ind. ; Downey vs. Day, 4 id. 531 ; 
 Goklsbury vs. Slatterville. 3 Bibb. (Ky.) 345 ; Smith vs. Sergeant, (ll Barb. 244. 
 
KWIIT TO BEGIN. 11,') 
 
 Inwe boeu since decided in illustration of it ; and although it is 
 a matter of regret that those decisions are not by any means uni- 
 form, yet it is apprehended that by attentive consideration of 
 tliem all, and keeping steadily in mind as a principle the propo- 
 sitions established by the decisions already quoted, the difficul- 
 ties in defining the limits of the rule will be much diminished, 
 if not altogether disappear. 
 
 § 60. First, then, it seems quite clear that this rule does not 
 apply in any case whatever where the damages are either nomi- 
 nal, and the action brought to try a right, or where they are liqui- 
 dated. This is indeed deducible from the very words of the rule, 
 whichever report of it be viewed as the correct one ; but there 
 have been also decided cases bearing directly on the point. In 
 Burrel vs. Nicholson,(a) which was an action of trespass for tak- 
 ing goods, to which the defendant pleaded in justification, that 
 he as constable took the goods under a warrant of distress for a 
 poor rate due by the plaintiflt', as occupier of a house in the parish 
 of S. M., and plaintiff replied, that the house was not in that 
 parish, the defendant claimed the right to begin, as the affirma- 
 tive of the issue was on him ; to which the plaintiff"'s counsel 
 replied — the new rule; and per Denman, C. J. : " The rule pro- 
 mulgated by the judges applies to cases where damages are the 
 object of the action, and a justification putting the issue on the 
 defendant is pleaded ; there the plaintiff" is to begin ; but the case 
 here is different, it is a mere question of right, and therefore the 
 defendant must begin, as the affirmative is on him : and this rul- 
 *45 ing was afterwards confirmed by *the court in banc.(l) 
 
 (a) 6 C. & P. 202 ; 1 M. & R. 304. 
 
 1. Trespass qu. cl. fr. is local, and can be brought only in a county in which 
 the trespass is committed, Haiu vs. Rogers, 6 Blackf. 5.59 ; Chapman vs. Doughty, 
 18 X. J. L. 3; Prichard vs. Campbell, 5 Ind. 494; Chapman vs. Morgan, 2 
 <Jreene .374. Where the locics in quo is denied specially, the burden is on the 
 plaintiff to prove that it includes the place defendant entered upon, Robinson vs. 
 White, 42 Me. 209 ; Houch vs. Loveall, 3 Md. 63. See tit. Case. 
 
 Where plea of "not guilty" is interposed, parol evidence may be given that 
 the plaintiff was in fact in the possession of the locus in quo or that the trespass 
 
116 RIGHT TO BEGIN. 
 
 § 61. Again, in Silk vs. Humphrey,! a) which was an action 
 of debt for a penalty of £50 brous;ht on 32 G. 2, c. 28, against 
 the defendants, who were shenfts, and who, as the declaration 
 alleged, having arrested the plaintiff on a cnplas^ had unlawfully 
 carried her to prison Avithin twenty-four hours, although she did. 
 not refuse to be carried to' some safe place of her own nomina- 
 tion ; to which defendants pleaded that the plaintiff had con- 
 sented to be taken to the house of one W. L. ; that thej' offered 
 to allow her to remain there twenty-four hours, but that she 
 requested them to carry her to prison, which they accordingly 
 did ; the replication traversed the allegation that the plaintiff had 
 consented to be taken to the house of W. L. ; and per Coleridge, 
 J. : "As the plaintiff does not go for unliquidated damages, the 
 defendants should begin."(6) The same doctrine seems also sup- 
 ported by the case of Bowles vs. ]Sreale,(c) which was an action 
 for a false return to a mandamus, in which defendant alleged that 
 he, as a rector, had deprived the j)laintifl" of his office of parish 
 clerk, for intoxication, &c., and the declaration- negatived suc- 
 cessively each of the allegations in the return ; the defendant in 
 his plea re-asserted the charges, and issue being joined ; per Lord 
 Denman : " Defendant ought to begin, as the affirmative is cer- 
 tainly on him." 
 
 (a) 7 C. & p. 14, (6) See notesl & 2 to § 40ante. (c) 7 C. & P. 262. 
 
 was committed on some inclosed or cultivated grounds belonging to the plaintiff, 
 Honch vs. Loveall, supra ; Smith vs. Wilson, 1 Dev. & B. (N. 0.) li. 40; still, 
 " not guilty " does not necessarily put the plaintiff's title in issue, Althouse vs. 
 Eice, 4 E. D. Smith 347 ; Carter vs. Wallace, 2 Tex. 206 ; but the defendant, 
 under this plea, may always contest plaintiff's title and compel trial of title if he 
 chooses ; Child vs. Allen, 33 Yt. 476 ; yet by denying that the defendant entered 
 the plaintiff's close as described in the plaintiff's writ, he puts the plaintiff's title 
 in issue, Bennet vs. Clemence, G Allen 10 ; so where the complaint alleges 
 plaintiff's title in fee-simple, Hutchinson vs. Chicago B. E. Co., 41 Wis. 541 ; 
 Eagsdale vs. Goghlke, 36 Te.x. 286. Where the defendant justifies by claim of 
 title to the locus in quo, he must take the burden, Larne vs. Gaskins, 5 Cal. 164 : 
 Eondell vs. Fay, 32 Cal. 354; so if a license to enter. Gambling vs. Price, 2 Xott 
 & M. (S. C.) 138; Hollemback vs. Eowley, 8 Allen, 473; Sawyer vs Xewland. 
 9 Tt. 383. 
 
RIGHT TO BEGIN. 117 
 
 § 62. The above decisions establish that the new rule docs iK,t 
 extend to any cases where the damages are either nominal or 
 liquidated.(l) The two following show, what indeed also might 
 be collected from the text of the rule, that it docs extend to all 
 that class of actions ex ddii-fa which are brought for anv injury 
 or violence to the person or reputation of a party. In Carter vs.. 
 Jones,'/?) the plaintift" brought his action for a libel, to which the 
 
 (a) B C. & p. 041 : 1 M. & U. 2S1. 
 
 1. Ill Cannuni ct al. vs. Farmer, 2 C. & Kir. 74*7, sixteen yours after the pro- 
 mulgation of the above rule of Carter vs. Jones, C. & P. 6."), Alderson, B., said : 
 "I do not agree as to the principle as to the substantial or unsubstantial dam- 
 ages : and I think the right cannot depend on whether the plaintiff goes for £100 
 or for a farthing. I know that Lord Denman has doubts on the subject, in which 
 several of the judges do not agree with him, and that there has been an arrange- 
 ment that in eases of libel, slander and personal injuries, the plaintiff should 
 begin." Again, to show that the rule adopted or the arramieiiient made was 
 never applied to cases of unliquidated damages liy the English judges, in Chap- 
 man vs. Emden, 9 C. A: P. 712, tried seven years after the adoption of the rule, 
 the ease was assumpsit by the marshal of the Queen's Bench prison. The decla- 
 ration stated that in consideration that plaintiff would allow J. W .. a prisoner 
 for debt, to reside within the rules, the defendant promised to indemnifv the 
 plaintiff from any escape of J. AV. That the plaintiff did allow J. AV. to reside- 
 in the rules, and that he escaped, and the plaintiff was obliged to pay the amount 
 for which J. AV. was imprisoned, and other expenses. Plea, that A., the execu- 
 tion creditor, and others, conspired to cause another creditor of J. AV. to sue out 
 a bailable writ against J. AV., and to cause him, if he should go beyond the rules, 
 to be arrested and detained out of the rules till A. could commence an action 
 against the marshal for the escape of J. AV., and that, in pursuance of that con- 
 spiracy, a bailable writ was sued out by L., a ereditor of J. AA^., and a warrant 
 granted thereon, upon which J. AV. was arrested and detained out of the rules 
 till the marshal was sued for the escape ; and that J. AA^. could and would have 
 returned into the rules before any action could have been commenced against the- 
 marshal if he had not been so arrested ; and that the plaintiff well knew the 
 premises, and would not plead the same as a defence to A.'s action against him. 
 and would not allow the defendant to defend that action. 
 
 Eep ication admitting the writ and warrant, with (/'/ injuria as to the residue. 
 
 Coleridge, J. : "I think that the defendant must begin, and that the jdaintifT 
 must give evidence as to the amount of damages afterwards as part of his case. 
 The rule of the judges does not apjdy to actions of this sort ; indeed, as I under- 
 
118 RIGHT TO BEGIN. 
 
 *i6 det'ondant, instead of the general issue, *pleaded several 
 special pleas which justified the whole of the libel; Tindal, C. 
 
 stand, it does not apply to anj' cases of contract, though certainly the decisions 
 are not uniform." 
 
 Subsequently, on page 134 of the same report, Doe d. Worcester Trustees vs. 
 Rowlands, the action was covenant. The declaration stated that the defendant 
 covenanted to occupy demised premises in a proper manner, and to keep them in 
 repair. Breaches, that the defendant did not occupy in a proper manner, and 
 ■did not keep them in repair. Plea, that the defendant did occupy in a proper 
 manner, and did keep the premises in repair. The same learned justice said : 
 " I think that the plaintiffs should begin ;" and further said that " the rule of the 
 judges, referred to in Carter vs. Jones, is not a rule of general application, but 
 only applies to particular actions, of which this is not one." Upon examining . 
 the English cases it will be found that the judges never applied any general rule, 
 «xcept the burden upon the face of the pleadings. A rule based upon the dis- 
 tinction between liquidated and unliquidated damages might be regarded as 
 general, but it would be a, complete abandonment of the rule whinh bases the 
 right to begin on the logic of the pleading which evolves the burden of proof. 
 If, however, we base the right upon the distinction between liquidated and 
 unliquidated damages, and abandon the logic of the pleadings, have we not 
 attempted to lay hold of a tissue that is ever dissolving under examination ? 
 Are the above cases, cases for liquidated or unliquidated damages ? Is the case 
 of Penhryn Slate Co. vs. Meyer, 8 Daly 62, ante I 34, n. 2, a case for liquidated 
 damages ? The test as to liquidated or unliquidated damages, mentioned by way 
 of dictct in Young vs. Highland, 9 G-ratt. 16 ; Huntington vs. Conkey, 33 Barb. 
 221 ; Cox. vs. Vickers, 35 Ind. 27 ; Bait., &c., E. E. Co. vs. McWhinney, 30 id. 
 436 ; Mercer vs. Whall, 5 Ad. & EI. (N. S.) 447, can only be applied where 
 malice, oppression, intent, animus, knowledge, deceit, negligence, &c., &c., are 
 either impliedly or expressly in the plaintiff's case as set up, and they are neither 
 admitted or are capable of being admitted, then the plaintiff must begin, as he 
 has at least the burden of one issue. Central Bank vs. St. Johns, 17 Wis. 157 ; 
 Heineman vs. Heard, 62 N. Y. 454. See tit. Case. 
 
 So a defendant has not the right to open and close, in a suit to recover for 
 medical services, when the answer admits that the services were performed, and 
 that the charges were the usual charges for such services, but alleges that by 
 reason of the unskilful and negligent treatment of the plaintiff, he received 
 great damages, Graham vs. Gantier, 21 Tex. Ill, as the fact of skilfulness and 
 diligence' is involved impliedly in the allegations for services, Billinger vs. 
 Craigue, 31 Barb. 535. The allegation of unskilfulness, &c., is a special plea 
 amounting to the general issue which does not impose the burden on the defend- 
 
RIGHT TO BEGIN. 119 
 
 J., then promulgated the rule under consideration, and, holding 
 that this was a proper ease for its application, allowed the plain- 
 
 ant so pleading, except where it is specifically replied to, so that by admission of 
 the pleading a specific issue is formed, Garrard vs. Willett, 4 J. .J. Marsh 628, 
 making it material. For it is held that if a judgment be obtained by a surgeon 
 before a justice for his services to a party, such party cannot afterwards prosecute 
 the plaintiff for malpractice. The question became res adjudirafu before the 
 justice, though the defendant in that suit first appeared and pleaded llie malprac- 
 tice and afterwards withdrew it, and left the plaintiff tu prove his case and take 
 judgment, Billinger vs. Craigue, supra ; Gates vs. Preston, 41 X. Y. 113 ;— for 
 the question of malpractice is involved in the issue for services and utterly incon- 
 sistent with a judgment for services ; and so involved that it cannot be with- 
 drawn from the effects of the adjudication before the justice, Blair vs. Bartlett, 
 75 X. Y. 150. The court, in Billinger, vs. ('raiguc, further says: '-It is, how- 
 ever, different with the (leiVncc called a counter claim, that may bo used to sus- 
 tain as well as to defend an action. It may co-exist with the plaintiff's chiim 
 and it is simply a cross-action to enforce a legal or equitable set-off. It admits 
 the plaintiff's demand, but sccliS to reduce it or even extinguish it, i-c. And I 
 think a defendant always has an election to recoup his damages or wait and bring 
 his suit. It may well be that his damages exceed the plaintiff's demand, and as 
 he cannot split up his claims and use part of it to extinguisli the plaintift''s demand, 
 and bring suit for the residue, he ought not bo bound to recoup his damages in 
 any case, nor do I think the authorities require it of him, Reub vs. McAllister, 8 
 Wend. 109. 14 id. 527 ; Barber vs. Rose, .") Hill, 7G. But where there is uo claim 
 on the part of the plaintiff, there cannot strictly and logically be a cnunter claim. 
 The claim of Billinger, plaintiff in suit for malpractice, in this case does not 
 admit of the defendant's claim, but denies its existence altogether. The two 
 claims cannot co-exist. If Billinger's claim is good, and if judgment had passed 
 in his favor before the suit in the justice's court was disposed of, it would have 
 estopped the defendant from saying that he had performed his contract , and would 
 have barred his action before the justice. This point was decided in the case of 
 Edwards vs. Stewart, in this court. As estoppels are mutual, the converse of 
 the proposition mu.'-t be held in this case, and I think the point is thus held in 
 Davis vs. Talcott, in the Court of Appeals." 
 
 If facts occur after the commencement of an clectiim, of which the defendant 
 desires to avail him.self, he must sot them up by plea puis dum'rn coiUiiinaii,cf. 
 If the parties go to trial on the general issue, they are confined to the rights 
 existing at the commencement of the action, Feagin vs. Pearson, 42 Ala. :i:i2, 
 but the plea, &c., waives the general issue, X. Y. Dry Dock (!o. vs. M'lntosh, 5 
 Hill 290, and, no dou1)t, a trial of one is an abandonment of the other. 
 
 9 
 
120 KIGHT TO BEGIN. 
 
 tifl" to begin. (1) In Atkinson vs. Warne,(a) which was an actioi> 
 for false imprisonraent, defendant pleaded in justification that he- 
 had given the plaintiff in custody for felonj'^ ; the plaintiff replied 
 de injuria^ &c., and his counsel claiming the right to begin by force- 
 of the new rule, Gurney, B., held that he was entitled to do so., 
 
 (a) 6C.& P. 687. 
 
 1. A diiferent practice was adopted in Moses vs. Gatewood, .5 Rich. (X. C.) 
 234; Ransom vs. Christian, 56 Ga. 351. But the rule in the text is adopted in 
 X. Y., not on account of the resolution of the English judges, but, although all 
 the allegations of a complaint for libel, except the amount of damages, be admit- 
 ted, yet the plaintiff will still have the right to open to show malice and extent 
 for the injury, even where no special damages have been laid, and malice has not, 
 in terms, been alleged, Opdyke vs. Weed, 18 xibb. Pr. 223 ; Hecker vs. Hopkins, 
 11) ib. 301, But if the amount of damages be admitted, the defendant will be^ 
 entitled to begin, Fry vs. Bennett, 3 Bosw. 290 ; 28 X. Y. 324. 
 
 But is it submitted that the practice of ordering the defendant to begin whenever 
 lie justifies the words alleged as defamatory as being true, after the analogy of" 
 trials in pleas in abatement, Jewett vs. Davis, 6 N. H. 518 ; Fowler, vs. Byrd, 1 
 Hemst. 213, is more in harmony with legal principles, Ransom vs. Christian, 56- 
 (ja. H.'il, and after the defendant has gone forward and failed, the case on the part 
 of the plaintiff will be considered to be simply to assess the damages. 
 
 The consequences of a failure to sustain a plea of justification in these actions, 
 are perilous to the same degree as in abatement, and even more so ; for a plea of 
 justification so completely admits the whole cause of action, that the defendant is 
 estopped from offering proof to repel the inference of malice ; he must stand or 
 fall l-iy his plea of the truth of the matter charged as libelous, Root vs. King, 7 
 Cow, 618; Bush vs. Prosser, 11 X. Y. 349 ; Cooper vs. Barber, 24 Wend. 105. 
 Although, under the code, malice may be rebutted under this justification, yet 
 upon common law principles this defence is only available under a special plea,. 
 Barrows vs. Carpenter, 1 Cliff. 204 ; Hagen vs. Hendy, 18 Md. 177 ; Terry vs 
 'Field, 10 Vt.353; Bush vs. Prosser, supra; Yan BenSchoteii vs. Yaple, IS 
 How. Pr. 97 ; Russ vs. Brooks, 4 E. D. Smith 644. 
 
 There is no doubt that the defendant may tender an issue upon any fact essen- 
 tial to the plaintiff's case. As that the words alleged were not spoken — that 
 they were not used in an actionable sense — that they were spoken on an occasion, 
 or under circumstances rendering them lawful — that they were pertinent to an issue- 
 on trial — Patterson vs. Jones, 8 B & C. 578 ; McPherson vs. Dasiels, 10 id. 272 ; 
 Lillie vs. Price, 5 Ad. & El. G45 ; Marsh vs. Ellsworth et als., 50 X"^. Y. 312 ; 
 Gilbert vs. Poeple, 1 Denio 4! ; Hastings vs. Lusk, 22 Wend. 410. 
 
RUniT TO BEGIN. 121 
 
 -5 63. So far there can be neither doubt nor difficulty as to the- 
 application of this rule ; but whether it applies to actions r.r delicto- 
 brought for injuries to property, or to any form of action c.f eon- 
 frnrfii, wliieh in either case the damages sought to be recovered 
 are uidiipiidated and serious, is a matter about which the decis- 
 ions have been somewhat inconsistent, and which we must 
 endeavor as far as possible to reconcile. 
 
 Although many of these deConces liy authority are admissible under the gene- 
 ral issue, yet they are logieally pleas in avoidance, Suydam vs. Muffatt, 1 Sandt'. 4()4, 
 
 For the purpose of examining the effect of ' not guilty," the following- classi- 
 fi(-ation must lie observed : 
 
 First. "When the words are actionable per sc. " not guilty " admits the false- 
 hood of the statements upon which the action is based, Thomas vs. Dunaway, 30" 
 111. ?>'?> : Shuken vs. Collins, 20 111. 32.i, but will operate as a denial of the speak- 
 ing of the words — speaking them in a defamatory sense — speaking them with 
 reference to plaintiff's office, profession or trade. 8o accord and satisfaction. 
 Lam vs. Applegate, 1 ritark. 97, the defence of privileged communication, and 
 that, if the occasion of the speaking does not furnish a bar to the action, but only 
 a prima fmiin bar, and casts upon the plaintiff the burden of showing malice m 
 fact, these defences may be given in evidence under the general issue, Lewis vs. 
 "Walter, 4 B. it Aid. 605. But it does not of itself put malice in issue, for, by- 
 admitting the falsity of the language, malice may be inferred from that alone,. 
 Root vs. King, T Cow. 613 ; Usher vs. i-!everence, 20 Me. 9 ; Hagen vs. Hendry^ 
 IS Md. 177. Evidence in mitigation may be given under this issue, provided it 
 be such a.s admits the charge to be false. Cooper vs. Barber, 24 Wend. 105. 
 
 Sii-ond. "When the words are not primn farir a<-tionable. ■• not guilty" oper- 
 ates as a denial of malice, express and general ; and thi' defendant may repel the 
 inferences of malice liy showing grounds of suspicion, and in this way prove the 
 truth of the matter spoken or published, Hart vs. Eeed, 1 B. Mwn. 166 ; so it 
 will put in issue all facts creating special damages, "Wilby vs. Ellston, 8 C. B. 
 142 ; Norton vs. Schofield, 9 M. & W. 665. In this class the plaintiff has the 
 burden of showing defamatory sense, express malice, and damages. 
 
 Thiril. liespecting the element of '■ i-i-ialice " in privileged communications, 
 the following divisions must be observed : 
 
 1 . Proof that the communication is privileged in law at all, throws the burden 
 of express malice on the plaintiff, Lewis vs. "Walters, 4 B. & Aid. 605 ; Budding- 
 ton vs. Davis, 6 How. Pr. 401 ; Cook vs. Hill, 3 Sandf. 341. 
 
 2. "Words spoken or written in certain cases of privileged cumHiunications are 
 affii-niatively authorized, independent of the question of malice and injury; ajull 
 
122 KIGHT TO BEGIN. 
 
 Ill Reeve vs. triiderliill,(«) which was an action for the non- 
 performance of a contract under seal, to which the defendant 
 pleaded that the deed was obtained by fraud, and issue was 
 joined, defendant claimed the right to begin, as the aflGirmative 
 lay upon him ; to which the plaintiff's counsel replied the new 
 rule, and urged, that as the damages were uncertain and unliqi- 
 dated, this case came within its provision. But Tindal, C. J., 
 
 (a) 6 C. & P. ra ; 1 M. & 11. 440. 
 
 the moment the circumstances are disclosed, the bar is complete, however mali- 
 ciously done they are. Of these there are two classes. The former consists of 
 words spoken or written in the legislative proceedings, Eex vs. Lord Abbington, 
 1 Esp. 226 ; Eex vs. Creevy, 1 M. & S. 273 ; Coffin vs. OofHu, 4 Mass. 1. The 
 latter language, used in the course of judicial proceedings, whether by judge, 
 party, counsel, witnesses or juror, if it be relevant to the matter under considera- 
 tion, and the tribunal either have or may reasonably be supposed to have juris- 
 diction, Eex vs. Skinner, Loft. 55 ; Scott vs. Stansfield, L. E., 3 Ex. 220 ; Sea- 
 man vs. Netherclift, 34 L. T. (N. S.) S78 ; Eandall vs. Brigham, 7 AVall. 523; 
 Lawson vs. Hicks, 38 Ala. 279; Eector v.s. Smith, 11 Iowa 302; Hastings vs. 
 Lusk, 22 Wend. 410 ; Jennings vs. Paine, 4 "Wis. 358 ; Calkins vs. Sumner, 13 
 id. 193; White vs. Carroll, 42 N. Y. 161; Marsh vs. Ellsworth, 50 id. 309; 
 Spooner vs. Keeler, 51 id. 526 ; Dunham vs. Powei-s, 42 Tt. 1 ; Wyall vs. Buell, 
 47 Oal. 624; and the sole question in such cases is '■ pertinency," which is matter 
 of law; Marsh vs. Ellsworth, supra; Whitely, vs. Adams, l."i C. B. (N. S.) 418. 
 
 3. Those prima facie privileged are only privileged in the absence of malicei 
 which is for the jury, Cooke vs. Wildes, ."> E. & B. 328 ; Fowls vs. Brown, 30 N. 
 Y. 20 ; White vs. Carroll, 42 N. Y. 162 ; and evidence of falsity of the charge is 
 no evidence of malice, Eowls vs. Brown, supra, in these cases. 
 
 Under this class are communications based upon information confidently made 
 to the proper authorities to secure the arrest of the offender. Woodward vs. 
 Lander, 6 C. & P. 548 ; Grimes vs. Coyle, 6 B. Mon. 301 ; Paris vs. Starkie, 9 
 Dana 128 ; Mayo vs. Sample, IS Iowa 307 ; what is said at a public meeting, if 
 spoken bona fide and without maliee, M'Mullen vs. Birch, 1 Binney 178 ; Smith 
 vs. Higgins, 16 Gray 251 ; charges made by a member of church regularly to a 
 meeting of the society, Shelton vs. Xance, 7 B. Mon. 128 ; Coombs vs. Eose, 8 
 Blackf. 155 ; such charges made to a lodge, Streety vs. Wood, 15 Barb. 105. 
 
 Prom the above analysis it will further be seen that if the defendant plead 
 affirmatively, order and convenience will be subserved by giving him the opening 
 and closing on the issues which he fixes by his pleas ; and if he fail, treat him as 
 a defaulted defendant and assess the damages. 
 
RIGHT TO BEGIN. 123 
 
 said : " I am of opinion that the present case is not within the 
 rule ; that rule applies to actions for libel, words, malicious prose- 
 cution, and similar cases. It can hardly be said in any case where 
 the action is for the breach of a special agreement, that the dam- 
 ages are precisely ascertained, but here the amount is after all a 
 mere matter of calculation, and not liable to be increased by any 
 *47 matter that the plaintiff can urge in *aggravation ; it is 
 otherwise in actions of libel, slander, and other cases where the 
 action is brought for malicious inj uries. I think that the affirma- 
 tive of the issue being on the defendants, they are entitled to 
 begin." 
 
 § 64. The next case is that of Lewis vs. Wells/^a) and was an 
 action of convenant for not repairing ; defendant pleaded several 
 pleas, and in all the issues as ultimately joined the onus probandi 
 lay on the defendant ; and per Coleridge, J. : " The old rule was 
 to look at the record, and see on whom the affirmative lay, aud I 
 think that the new rule of the judges has not varied it in actions 
 of contract." 
 
 ^ 65. And again, in the case of Wooton vs. Barton,(6) where 
 the declaration stated that the defendant had covenanted that at 
 the end of a certain term demised by him to the plaintiff, he 
 would re-purchase of the plaintiff the stock, &c., on the premises ; 
 to which defendant pleaded that the plaintift' had, by fraud and 
 covin, removed all the valuable part of the stock, and left noth- 
 ing but worthless goods on the premises, on which issue was 
 joined and the new rule cited ; Parke, B., said : " The only rule 
 laid down by the judges was, that in actions for personal injuries 
 where damages are sought, as in actions of assault, &c., and in 
 libel and slander, the plaintiff should begin. The general rule 
 is, that the party on whom the issue is should begin. This was 
 not altered by the resolution of the judges. I shall rule that the 
 defendant is entitled to begin." In addition to these direct 
 authorities, there is another which seems indirectly to support 
 the same doctrine, that the new rule does not, in general, extend 
 
 (a) 7C. & P.'2-:i i'') 1 »'• S:B- •'''■• 
 
124 EICHT TO BEGIN. 
 
 to actions c.r runtnictii. In Coxhead vs. IIuisli,(a') which was an 
 action for goods sold, &c., Avith a count ibr use and occupation of 
 lodgings, to which defendant pleaded as to £20, parcel of the 
 •demand, payment, and to the residue a set-off; per Parke, B. : 
 ^' The defendant must begin." 
 
 § 66. *0a the other hand, there are not wanting eases, *48 
 and very recent ones, too, which tend to sho^A- that the onus of 
 proving unliquidated damages in any form of action comes within 
 the new rule, and will entitle the plaintiff to begin. In Har- 
 rison vs. Gould,(6) which was an assumpsit for breach of promise 
 of marriage, to which the defendant pleaded, that after the 
 promises, &c., the plaintiff had conducted herself in a lewd, 
 unchaste, and immodest manner, and had been guilty of indecent 
 and immoral conduct, defendant's counsel claimed the right to 
 begin, and cited Carter vs. Jones,(r) Barrel vs. Nicholson,(c?) Davies 
 vs. Evans,(c') {infra ^ S8,) Warner vs. Haines,(^/) {infra p. 60,) Atlcin- 
 son vs. Warne,(<7) Smart vs. Rayner,(/i) Mills vs. Oddy,(2') {vide the 
 two last, infra § 76,) and Reeve vs. Underbill ;(,/') the plaintiff, on 
 the contrar}-, cited the new rule, and argued that it extended to 
 all cases wljere unliquidated damages were sought to be recovered. 
 [Note. — This is not mentioned in the report, but such, I have been 
 informed, was the argument used.] And per Gaselee, J. (after 
 having consulted Lord Abinger, C. B.) : " The plaintiff ought to 
 begin. "(/i-) And again, in the very recent case of Absolon vs. 
 Beaumont,(/) which was an action on a policy of insurance against 
 fire, to which defendant pleaded four pleas, in all of which he 
 took the onus probandi on himself./!) and claiming the right to 
 begin, cited Carter vs. Jones,(c) and Cooper a's. Wakley ■,{ni) but 
 
 (a)7C.&P. 6a. (6) 7 C. & p. rsii. (e) 6 (J. & P. 640. (d) C. & P. 202. (e) 6 C. & P. 619. 
 
 (/) 6 0. & P. 6(il). (ff) 6 C. & P.6S7. (h) —711. (() 6 . & P. 738. 
 
 O) 6 C. & P. 773. (fc)See§92, n. (i) 1 M. & E. 4,41. (m) 3 C. & P. 474. 
 
 1. In an action ou a life policy to be cancelled in ease. )iy return of pre- 
 miums, on a plea that the deceased died by suicide and that the premiums -were 
 ready to be returned, the defendant is entitled to begin. 8tarmonnt vs. Waterloo 
 Life Ins. Co., 1 F. & F. '220. 
 
 There is no presumption of law, prima f uric or otherwise, that self-destruction 
 arises from insanity, Terry \s. Life Ins. Co., 1 Dill. 403. /^-fi^^ '<'-■ .%o'.- Jj. i 
 
RIGHT TO BEGIiX. 125 
 
 Xoril Deumuii, C. J., said : "In all cases where any affirmative 
 issue, or^ to speak more correctly, any affirmative proof lies on 
 the plaintiff to show^ what damages he is entitled to, he has a 
 right to begin." 
 
 § 67. In order to come to a correct conclusion on the subject, 
 it is to be observed, that the case of Harrison vs. Gould,(f/.) may 
 perhaps after all be reconciled with those vphich preceded it. 
 They, it is to be remembered, were actions of contract for injuries 
 *49 to property, which outlive the party *wronged, and for 
 which his executors might bring an action, while the case of 
 Harrison vs. Gould,(ff) was one of the species of actions of con- 
 tract which works an injury to the feelings, and occasions a per- 
 sonal suffering to the party rather than an injury to his property. 
 It is well known that neither by common nor statute law can 
 actions of this description be brought by executors, (unless some 
 -special damage has thereby occrued to the personal estate of the 
 deceased.) They must be brought by the injured person alone, 
 for the wrong done to himself, and in this pwint of view may 
 fairly be considered 2;rr.?0H«/' injuries within the meaning of the 
 new rule, while they also seem to partake of the mischievous 
 nature of libel and slander. 
 
 § 68. So that, keeping this distinction in mind, the only 
 authority which goes the full length of asserting that the onus 
 of proving unliquidated damages (ilicays gives a right to begin, 
 is that of Absolon vs. Beaumont ;(i) and it is to be remarked, 
 that in that case, if we are to trust to the report, although the 
 new rule was mentioned as having been promulgated in Carter 
 Ts. Jones,(c) yet not one of the decisions which have since taken 
 place were even alluded to, but the parties contented themselves 
 with citing that case, together with the old one of Cooper vs. 
 "W"akley.(c^ It is therefore but justice to presume that had the 
 ■cases of Reeve vs. Underhill,(e) Lewis vs. Wells,^/') Wooton vs. 
 -Barton,(5') and Coxhead vs. Huish,(//) been cited in Absolon vs. 
 
 (a) 7 C. & p. 5S0. (c) 8 C. & P. 540. (e) 6 C. & P. 773. (g) 1 Jl. & K r.iS. 
 
 (6) 1 M. & R. 441. (d) 3 C. & P. 47i. (/) 7 O. & P. -iiii {7sj 7 C. & P. 63. 
 
126 RIGHT TO BEGIN. 
 
 Beaumont,(a) the decision in this latter would have been very 
 different. As it is, Absolon vs. Beaumont,(a) stands alone, and 
 there are at least three decided cases against it, for which reasons, 
 coupled with the others already mentioned, we may venture to 
 disregard its authority on the present occasion. 
 
 § 69. The result, therefore, of all the cases, seems to be, that 
 the new rale does not apply in any case whatever where the dam- 
 ages are either nominal or liquidated.(6) That it extends to all 
 *50 actions ex delicto malicious *injury to the person, and to all 
 actions ex contractu which die with the person. 
 
 It is to be presumed that the defendant, by admitting the 
 amount of damages even in a ease coming; within the rule, can 
 obtain the right to begin. (c) 
 
 § 70. We have hitherto been considering the case where there 
 is but one issue joined on the record. This, however, is not of 
 universal, or even most common occurrence ; and when there are 
 more issues than one arrived at, it not unfrequently happens that 
 the onus of proving some one or more of them lies on one party, 
 and the onus of proving the rest upon the other. It is commonly 
 said, and even laid down in some books, that if the affirmative 
 of any one of the issues lies on the plaintiff, he is entitled to begin 
 and obliged to go through his whole case in the first instance. (1) 
 The latter part of this assertion shall be presently considered ; 
 but, with respect to the former, it is obvious that the mere affir- 
 mative lying on the plaintiff can possibly make no difference, or 
 give him any privilege ; and the rule, as observed in practice, is, 
 "that if the onus of proving any one of the issues Ue on the 
 plaintiff, he is always thereby entitled to begin. "(</) 
 
 (a) 1 M. & R. 441. (!;) See pp. 99, 100. (e) See p. -2, n. 4, & pp. 99, 100; sei-, also, .is to 
 admissions to obtain right to begin, p. 92, n. '2. (d) See § hi— (a) 
 
 1. Where the affirmative of any one material issue is on the plaintiff, 
 and he undertakes to give evidence upon it, he is entitled to begin, Rawlins vs. 
 Desborough, 2 M. & Rob. 238 ; 1 Cr. U. C. 404; -3 Bl. Com. 366 ; Jackson vs. 
 Pittsford, 5 Blackf. 194; Buzzell vs. Snell, 25 X. H. 474; Belnap vs. Wendell, 
 •21 Id., 175 ; Chesley vs. Chesley, 37 ib. 270 ; Huntington vs. Conkey, 33 Barb. 
 218: Lexington Ins. Co. vs. Paver, IG Oh. 324; Montgonii'vy vs. Swindler, 32 
 
RIGHT TO BEGIN. 127 
 
 § 71. Thus in the case of "Wood vs. Pringle,(a) which was an 
 action for libel, to which defendant pleaded several special pleas 
 to certain parts of the libel, and suffered judgment by default to 
 the rest, it was held bj Lord Denman, that as to those parts of 
 the case on which judgment had been allowed to go by default,, 
 that the plaintiff was entitled to begin by showing the amount 
 of his damages ; and having the right to begin as to part, he had 
 the general right to begin. 
 
 § 72. Owing to the peculiar nature of the action of ivplcc/'n^ 
 *51 *and the circumstances that both parties are, to a certain 
 extent, plaintiffs, it has frequently been attempted to show that 
 the above rule does uotapply in that form of action. That attempt,, 
 however, has not succeeded ; and in the cases of Curtis vs. 
 
 (a) 1 M. &. R. 277, 
 
 Oh. St. 7 Kept. 307 ; Ehvell vs. Chamberlain, 31 N. Y. 611. So it is held if ther& 
 be an affirmative on both sides, Craig vs. Tenn. C. & Mar. 43; Eawlius vs. Dos- 
 borough, 8 C. & P. 321 ; Soward vs. Legett, 7 C. & P. 613; but this is only 
 another form of the statement, " if one issue be on the plaintiff he should begin." 
 See ante H 3, 5, 10 & notes. 
 
 The court will not divide the issues. Central Bank vs. St. John's, 17 "Wis. I.'h ; 
 so where the plaintiff is not entitled to recover unless he establishes the hona fiih 
 ownership of certain property in controversy, he cannot be deprived of his right 
 to open and conclude, by reason of the fact that the defendant alleges the plain- 
 tiff's title is fraudulent and void — and insists that that raises an affirmative issue- 
 on his part, Churchville vs. Lee, 77 N. C. 431. 
 
 Under the Code when the whole case is deemed at issue liy the reply, it is held, 
 that where the complaint is confessed and avoided and the answer is also con- 
 fessed and avoided, the defendant has the right to begin and ilose. Judah vs. A'in- 
 cennes Univers., 23 Ind. 273. 
 
 In equity on the hearing, on bill, crossbill, answers and depositions, both causes 
 being heard together, and both parties having material allegations to sustain, the 
 complainant in the original bill is entitled to open and close. Murphy vs. Stults, 1 
 X. J. Eq. (Sax.) 560 ; and the party who objects to a decree and seeks to have it 
 corrected is entitled to open and close the argument, Sills vs. Brown, 1 Johns. Ch. 
 444 ; so where a bill is demurred to and dismissed, and the orator appeals to tho 
 Supreme Court, the party denuirring should open the argument. Bishop vs. Day, 
 13 Vt. 116. 
 
128 RIGHT TO BEGIN. 
 
 Wheeler,(a) Williams vs. Thomas,(/j) and James vs. Salter,(r) it 
 has been ruled that the principle applies in replevin ]ust the same 
 as in other actions ; that the onus of proving one issue lying on 
 plaintifl', he has a general right to begin. Vide those cases, 
 !»fm § 107. 
 
 § 73. It must, however, be carefully observed, that in order 
 to give the plaintiff a general right to begin, the issue, the onus 
 •of proving Avhich lies upon him, must be a real and bona fide ques- 
 tion between the parties, and not a mere formal or colorable issue 
 •on the record. Thus in actions of trespass quare clausum. fregit, 
 where the plea commences by denying the force and arms, and 
 whatever else is against the peace, &c., and then goes on to state 
 the particular grounds of defence on which the party relies ; and, 
 •consequently, there are in form two issues joined ; in two early 
 cases. Pledges vs. Holder,(ci) and Jackson vs. Hesketh,(e) (vide them 
 supra § 42,) where the onus probandi on the second issue lay on 
 the defendant, and the plaintiff claimed the right to begin, on 
 the ground that the onus of proving the first, viz., the force and 
 arms, &c., lay upon him, it was held by Bayley, J., " That the not 
 guilty as to force and arms, Avas not a general issue, and did not 
 throw the burden of any proof on the plaintifl"; that it was not 
 inserted with a view to the cause, but to bar the claim of the 
 <;rown to a fine for trespass, and was quite dehors the cause as 
 between the litigant parties ;" and he ruled in both cases that 
 •defendant should begin.(l) 
 
 (a) 4 C. & p. 198. (6)4C. &P23t. (e) I M. & E. 59.5. (d) :i Camp. 366. (c) 2 Stark, 51S, 
 
 1. Pleas in bar are in discharge of tlie action, and every plea must be pleaded 
 to the action. A plea to the damages only are vicious, Smith et als. vs. Apple- 
 gate, 3 Zab. 35'2 ; Deniick vs. Chapman, 11 Johns. 132. See Millard et aJs. vs. 
 Thorn, 56 N. Y. 405 ; Laramore vs. Wells, 29 Oh. St. 13 ; Manufact. Nat. B'k 
 vs. Eussel, 13 N. Y. Sup. Ot. 375. So all matters of mere evidence, whether the 
 case be at law or equity, and they 'will be stricken out on motion as irrelevant, 
 Boweu vs. Aubrey, 22 Cal. 566 ; Gathcart vs. Peck, 11 Minn. 45 ; Williams vs. 
 Ha3's, 5 How. Pr. 470 ; Eennselaer, etc., Co. vs. Wetsel, 6 id. 68 ; Wooden vs. 
 Strew. 10 id. 48 ; McAlister vs. Kuhn, 6 Otto 87. 
 
 An argumentative plea will be stricken out, Salt Lake City Xat. Bank vs. 
 
KIUUT TO I5E(}1X. I'dl) 
 
 ^ 74. For the siinie reason, it has been established by some 
 "■*o2 *recent eases, that Avhen common eoiuits are joined with 
 special ones foi- the mere purpose of securing a verdict, and no 
 further evidence is intended to be offered in their support besides 
 that relied on in the special counts, the general issue joined on 
 those common counts is not a distinct issue of such a description 
 iis to entitle the plaintiff to begin, if the onus probandi on the 
 special counts lies on the defendant. 
 
 § 75. The following are the cases on this subject: In Homan 
 vs. Thompson, (r/) Avhich was an action hy payee of a promissorj- 
 note against the maker, with counts for money lent and account 
 
 (a) 6C. & P. 717. 
 
 Hendrickson, Jl Tr. .V2 ■ so a replication faulty for duplicity, iStults vs. Bucka- 
 lew, 4 Dutch. 150 ; but it is in the discretion of the court to strike out irrele- 
 vant or redundant matter, Abbott vs. Striblin. 6 Iowa 191 ; Buel vs. Lake, 8 id. 
 1.51, as it may be regarded as mere surplusage, Murphy vs. Bynl, 1 Hemst. TJ.I ; 
 Averill vs. Ta3'lor, .■> How Pr. 476. 
 
 After an answer has been stricken out as insufficient, the case stuud.s as upon a 
 default, Eobinson vs. Lawson, 26 Mo. 69 ; Xorth Brunswick vs. Boorean, ."> IIal>t. 
 2.i7 ; but on a motion to strike out a part of an answer as contradictory, evusis-c, 
 <tc., the plaintiff is not entitled to have the whole answer stricken out, Mott vs. 
 Burnett, 2 E. D. Smith ,50. yet the adverse party may always be considered a- 
 aggrieved by scandalous and impertinent or irrelevant and redundant matter in 
 a pleading. Carpenter vs. AVest. 5 How. Pr. 5:-! ; "Williams vs. Hays, id. 4T(t : 
 Putnam vs. DeForest, 8 id. 146. 
 
 Pleadings are equally defective, whether improperly pleaded in point of time 
 or point of law ; if the former the propriety of the pleading must be tested by 
 a motion to strike out, Price vs. Sinclair, 13 Miss. 234; Whitney vs. Merchants 
 Xat. B'k, 11 Vr. 481 ; so of a plea contradicting the record or imputing fraud 
 to the court, Middleton vs ^-^mes, 7 "\"t. 168 ; so of a plea conceded to be false, 
 in fact, however good in point of law. Steward vs. Hotchkiss, 2 Cow. 634 ; Rich- 
 ley vs. Proove, 1 Barn & Cr. 286 ; and of a paper purporting to be both a plea 
 and demurrer, Coleman vs, Toop, "Wright (()) 315; or if it be illegible, Duwner 
 vs. Staines, 5 Wis. 159. 
 
 A special plea amounting to the general issue nray be stricken out, althongli a 
 ■demurrer has been made and overruled. 111. R. K. Co. vs. Johnson, 34 111. .'!S'.) : 
 City vs. Brinkmyer, 12 Ind, 349 ; Christian vs. Manderson, 2 Pa. 363 ; Stevens 
 vs. Campbell, 21 id. 471 ; Grafflin vs. Jackson cf als.. 11 A'r. 441 ; Anonymous, 
 
 / 
 
130 RIGHT TO BEGIN. 
 
 stated ; plea to the first count, no considei-ation (afterwards held 
 the plea would have been bad on special demurrer, but was aided by 
 verdict), and to the two last, non-assumpsit ; replication, that 
 defendant had consideration, &c. ; and per Parke, B. : " As the- 
 bill is admitted the defendant must begin. I held yesterday that 
 if no evidence is intended to be given by a plaintiiF on the money 
 counts, the general issue pleaded to those counts will not entitle 
 him to begin, as the object of an opening is to put the jury in 
 possession of the facts you mean to prove by your witnesses. My 
 
 7 Hill 146 ; the motion to strike out is a substitute for special demurrer, Grafflin 
 vs. Jackson et als, supra ; Camp vs. Allen, 7 Halst, 1 ; so it is held that notices, 
 of matter stated under the general issue must constitute a defence to the action, 
 or they will be stricken out, Pallet vs. Sargent, 36 N. H. 496, for the law will not 
 allow the general issue restricted. Bush vs. Prosser, 11 N. Y. iiSl ; Wilmarth vs. 
 Babcook, 2 Hill 194; Barber vs. Rose, 5 id. 76 ; but to have this effect it must 
 be a negative plea, and not an affirmative provable under the general issue. 
 Dibble Pray & Co., vs. Duncan et als , 2 McLean 554. See next note. And 
 these notices do not amount to a special plea, because they admit nothing, 
 Vaughn vs. Havens, 8 Johns. 109. See further on this point, ne.xt note. 
 
 A plea to the jurisdiction not filed till after a plea to the merits is a nullity, 
 Taylor vs. Hall, 20 Tex. 211 ; Beitler vs. Sturdy, 10 Pa. 418 ; so non-assumpsit 
 pleaded to an action on the case, for tort, will be stricken out on motion, Wil- 
 kinson vs. Mosely, 30 Ala. 562 ; but the objection that a traversable fact is 
 stated without a venue in the body of the declaration, goes to a matter of mere 
 form cured by the statute abolishing special demurrers. Reed vs. Wilson, 12 
 Tr. 29. 
 
 But the motion to strike out does not authorize defendant to go back and 
 attack plaintiff's pleadings. Com. Ex. Bank vs. West. T. Co., 15 Abb. Pr. 319; 
 Hogencamp vs. Aokerman, 4 Zab. 133 ; Salt Lake City Nat. Bank vs. Hender- 
 son, 12 Vr. 52. 
 
 Under the code a motion to strike out an entire answer as frivolous is irregular. 
 The proper motion is for judgment, Hull vs. Smith, 1 Duer 649 ; and such 
 motion is in the nature of a summary demurrer (see pp. 18, 88, n. 2), although 
 the statute authorize amendments, Burrall vs. Moore, 5 Duer 654 ; Livingston. 
 vs. Hummer, 7 Bosw. 670 ; G-rubb vs. Remmington, 7 Wis. 349 ; Freeman vs. 
 Currau, 1 Minn. 169 ; and it seems unnecessary particularity is no fault under 
 the code, Demithorne vs. Denithorn, 15 How. Pr. 233; JMalone vs. Dow. id. 261 ; 
 Clark vs. Harwood, 8 id. 470. 
 
RIGHT TO BEGIN. 131 
 
 own impression is that the defendant should begin ; but as Gur- 
 uey, B., held otherwise, I shall act on that precedent in this 
 instance, and consider of the matter with the view of laying 
 down some general rule." 
 
 § 7G. Also in Smart vs. Rayner,(a) first count, assumpsit by 
 indorsee against acceptor of bill of exchange drawn by A. S. ; 
 second count, on another bill between the same parties ; third, 
 account stated ; as pleas to two first counts, payment of each of 
 the bills respectively, and to the third non-assumpsit ; replication 
 traversed the first pleas, and the plaintiff claimed the right to 
 begin, as the general issue was pleaded to the third count ; sed 
 per Parke, B. : " Have you (plaintiff) any evidence to give on 
 *53 the *account stated ? If not, defendant must begin ; the 
 only object of an opening is to state to the jury the evidence that 
 you propose to adduce. If you have no evidence but the bills, 
 defendant must begin." And the plaintiff having no other evi- 
 dence, the defendant began accordingly. And in the case of Mills 
 vs. Oddy,(6) assumpsit, first count for a check drawn by defendant 
 on Bank of England, second count, account stated; plea to first 
 count, no consideration ; to second, non-assumpsit ; plaintifl^ replied 
 consideration to first count ; and per Parke, B.: "I have consid- 
 ered of this matter since the trial of the case of Homan vs. 
 Thompson, and 1 think that on these pleadings defendant is 
 entitled to begin." 
 
 § 77. And, lastly, the case of Faith and another vs. M'Intyre,(c-) 
 first count, assumpsit by indorsees against acceptor of a bill drawn 
 by Brown ; second, account stated ; plea to the first count, that 
 the bill was accepted for the accommodation of B., and when due 
 that it was in the possession of the plaintifl" F. and one W. K. 
 as holders, and that they then held a blank stamped acceptance 
 from Brown intended for the accommodation of G. F. and W. 
 K. as a bill for £500 to the order of the drawer, six months after 
 date ; and they, after the bill became due, with consent of Brown, 
 added their names as drawers to the blank acceptance, thereby 
 
 (a) 6 C. & p. 721 . ' (6) G C. & P. 728. (c) 7 C. & P. W. 
 
132 RIGHT TO BEGIN. 
 
 making it a bill for £500 payable to order of G. F. and W. K.^ 
 which they then negotiated for their own use, and before the 
 commencement of this action the amount of it was paid, and 
 that the same was in satisfaction of the first bill, &c. ; second 
 plea, that after the bill had become due, &c., Brown paid £260 in 
 satisfaction ; to the second count, not-assumpsit ; replication to 
 first plea, de injuria, and per Parke, B. : "On these pleadings- 
 defendant has a right to begin."(l) 
 
 1. See examples on pp. 90j 94, 100. In an action by an indorsee against tlie 
 maker of a promissory note, lie pleaded that the note was in the hands of V., and 
 that while it was so, the claim of Y. on it was by an order referred to an arbitra- 
 tor ; and that before any award was made the note was, in violation of good 
 faith, delivered to the plaintiff, and that he, at the time he took the note, had! 
 knowledge of all the premises. 
 
 Eeplication, that he had not any knowledge of the premises. Held, that the- 
 defendant must begin, as the plaintiff's knowledge of the other facts fl-as an 
 essential part of the defence. Smith vs. Martin, Car. & M. 58; 9 M. & AT. 804; 
 1 Dowl. (X. S.) 418. 
 
 Where no general denial is interposed, but matter in set-off is set up, and other^ 
 affirmative matter, defendant should have the opening and closing. Brown vs, 
 Speers, 20 Ind. 146 ; and so where an answer admits the allegation of the com- 
 plaint and pleads a counter claim, and the reply alleges special circumstances 
 negativing the allegations of the counter claim, defendant is entitled at the trial 
 to open and close, Brown vs. Kirkpatrick, a S. C. 267. 
 
 Special pleas to the " common counts " in assumpsit are bad as amounting to 
 the general issue, 9 Phil. (Pa.) 210. Suppose a motion to strike out the plea of 
 payment had been made in N. Y. Dry D. Co. vs. M'Intosh, 5 Hill 290, arite p. 
 100, n. ? So non-assumpsit as to the whole and tender as to part cannot be 
 pleaded together. Chew vs. Close, 9 Phil. (Pa.) 211 ; the reason is tersely stated 
 by Cowan, .J., in The Seneca Eoad Co. vs. The Aub. & Roch. R. R. Co., 5 Hill 
 178 : " It is highly ex'oeptionable pleading, first, to aver that the plaintiff's cause 
 of action is something other than he has himself made it in his declaration, and 
 then plead to the new case thus fabricated for him. "We have often, of late, set 
 aside such pleas summarily, where they first averred that the general counts in 
 assumpsit were intended of a note and then went on to answer the note instead of 
 the counts. With the same propriety might a defendant first frame a count for 
 the plaintiff and then demur." See Anonymous, 19 ATend. 226, and note ; Dib- 
 ble vs. Kempshall, 2 Hill 124; AVilmarth vs. Babcock, id. 194; Sterry vs. 
 Schuvler, 23 Wend. 487. 
 
RiaHT TO BEGIN. 133: 
 
 § 78. It may seem superfluous to remark, but it has been 
 reported that when a declaration contains a special count, 
 *5-i *together with one for an account stated, to which the 
 defendant pleads want of consideration, the plaintiii' replies that 
 as to part of the money a good consideration existed, and to the 
 rest of that count, and all the second one, enters a nolle prosequi^ 
 that the defendant is entitled to begin, Edwards vs. Jones,(a) 
 ■^upra § 32. 
 
 § 79. AVhere the issue is on the plaintiff, and he has had notice 
 by the pleadings or otherwise of the nature of the defence to be 
 set up, it was formerly held that he was obliged to go into his 
 whole case in the first instance, and establish, not only his jjru/hf 
 facie right to recover, but disprove the defence intended to be set 
 up of which he has thus had notice. This was so held by Lord 
 
 (a) 7 C. & P. 6:53. 
 
 But it will be observed that in actions of assumpsit there are many defences 
 which may be pleaded specially or given in evidence under the general is.suc ; of 
 this character are all such as confess the action (gives express or implied color to 
 plaintiff), and go to discharge the .^anie — and not merely in denial ; such as cov- 
 erture, release, want of consideration, accord and satisfaction, foreign attachment, 
 higher security, payment, &c.. Dibble, Pray it Co. vs. Duncan ct als., 2 McLean 
 .554; Armstrong vs. Webster, 30 111. 333; and these pleas should conclude with 
 a verification ; for those that must conclnde to the country are obnoxious a& 
 pleading specially what amounts to the general issue. "Wilkes vs. Hopkins et als., 
 6 Man. & Gr. 36. Anfe pp. 24 88. 
 
 So, in an action of del it for goods sold, defendant pleaded coverture. Eeplica- 
 tion denying coverture ; the defendant must begin if there be no other pleas. 
 Woodgate vs. Potts, 2 (Jar. & Kir. 458 ; the same when the action was on a 
 promissory note, Cannam vs. Farmer, id. 747 ; and if there be a bill of particu- 
 lars, and there be an express admission at the trial of the .iiniount claimed in the 
 bill, and the pleas be affirmative only — even though the claim be for unliquidated 
 damages — the defendant should begin, Eoscoe's X. P. 27G, citing 'J'indall vs. 
 Baskett, 2 F. & P. 644; Bonfield vs. Smith, 2 M. & R. 519. 
 
 But it is only on the ground that the admission appears on the record that the 
 defendant can claim the right to begin, without expressly making the admission, 
 Blacklodge vs. Pine, 28 Ind. 466 ; Goodpaster vs. Vooris, 8 Iowa 344 ; without 
 the bill of particulars or express admission the plaintiff should proceed as for 
 unliquidated damages, Hayward vs. Kadcliff, 4 F. & P. 500. 
 
134 EIGHT TO BEGIN. 
 
 EUeiiboroLigh, in the case of Rees vs. Smith,(a) and it is said that 
 he generally, at nisi^yrius, adopted the practice.(6) That case was 
 an action of tresspass for breaking into the plaintiff's house and 
 seizing his goods, to which defendant pleaded, first, the general 
 issue ; second, a fraudulent removal of the goods to avoid a dis- 
 tress for rent. The plaintiff at first proved the trespass ; defend- 
 ant then gave evidence m support of his plea ; after which the 
 plaintiff offered general evidence to negative the supposition of 
 a fraudulent removal ; but Lord EUenborough said, that when 
 the defence is known, either by pleading or notice, the plaintiff" 
 is bound to open the whole case in chief.(c) 
 
 § 80. That if any one fact be adduced by the defendant to 
 which an answer could be given, the plaintiff' should have an 
 opportunity given him to do so ; but that this should be under- 
 stood of a specific fact: that he could not go into general evi- 
 dence, in reply to the defendant's case, that there was no instance 
 in wdiich the plaintiff was entitled to go into half his case and 
 *55 reserve the remainder. *This doctrine, however, has been 
 since abandoned. Lord Chief Justice Abbott adopted a contrary 
 course, and allowed the plaintiff' to give evidence in answer to a 
 defence in an action on a bill, that there was no consideration 
 after notice of the intended defence.(fZ) 
 
 § 81. And, as Mr. Starkie justly observed, " it is possible that 
 the defendant may not be able to establish any case and thus time 
 may be saved by postponing the plaintift"'s reply ;(1) besides, until 
 
 («) 2 stark. N. p. C. 30. (6) J Stark. Ev. 382. (c) No sucli praol ice obtains generally 
 In this country. See § 31, n. 1. (d) 1 Stark. Ev. 882. 
 
 1. The observations of Mr. Starkie illustrate the rule adopted in this country. 
 The plaintiff must not content himself by shoviiug a, prima facie right to recover 
 only, but must introduce all his testimony to sustain the issue containing the right 
 to recover, so that the jury can see from the whole case that the plaintiff is so 
 entitled. The burden at the trial does not shift from side to side as a mere prima 
 facie case is developed by either, but all the testimony on the plaintiff's affirma- 
 tives should be introduced together, Heineman vs. Heard, 62 N. Y. 454 ; Lamb 
 vs. 0am. & Amb. E. E. Co., 46 N. Y. 271 ; but not to dispute the defence intended 
 to be set up, vide supra I 31, n. 1. 
 
RIGHT TO BElilX. 1 0-5 
 
 the defendant lias adduced sucli evidence, it camiot be known 
 Avith any certainty- to what points the plaintiff is to adduce liis 
 evidence in reply, and that the whole subject seems to be a mat- 
 ter of practical convenience, subject to the discretion of the judge 
 at nisi pr/'u-^." In the first case that occurred since the new rule 
 of the judges above mentioned, that of Carter vs. Jones,'a) which 
 was an action for libel, to which all the pleas were in justification, 
 and the onus probandi on the defendant ; bj' force of the new rule 
 the plaintiff was called on to begin, he did so, and went into his 
 whole case : but this, it should seem, was optional — not com- 
 pulsor\-. 
 
 § 82. But he will not be allowed in his opening to give a jicn'- 
 tiou of the evidence he niay possess in reply to the defendant's 
 case, and reserve the rest till tije defendant has concluded. Thus 
 in Browne vs. Murra_\ ,{0) which was an action for a libel, to which 
 defendant pleaded the general issne and several pleas in justifica- 
 tion, and the plaintiff, after proving the publication, called a wit- 
 ness to disprove certain facts alleged in the justification, and after 
 the defendant had closed his case proposed to call another to dis- 
 prove others of those facts, Abbot, C. J., said : " The plaintiff, in 
 -actions of this nature, may, if bethinks fit, content himself with 
 the proof of the libel, and leave it to the defendant to make out 
 *56 his ^justification ; and the plaintift' maj', in reply, rebut the 
 evidence produced by the defendant. 
 
 (at C. & F (H (6) K. & M -IM 
 
 And wherever the defendant traverses and also specially jii';tifie>. the plaintiff 
 -hould reserve his ease pii the special pleas niitil the doi'eiidant has proved them ; 
 for if the plaintiff elect In enter into disproof of tlicni in (lie first in.-tance. he 
 will not be allowed to give fnrthei' evidence of the sann' kind in reply. The ])lain- 
 tiff is entitled to resei-ve his answers to defendant's case, although his witnesses 
 have been cro.-^s-c.xaniined so as to disclose tlie nature of the defence relied on, 
 Shaw vs. Beck, 8 Ex. 3!)2 ; (ioss vs. 'I'nrner, 21 \'t. 4:!7. 
 
 Both ])arti(.'s are bound by the view of their i-cs]iectivc cases taki'n by their 
 counsel at the trial, and the mode ii( coTiducting them, and they cannot mo\e foi- 
 11 new trial upon grounds neglected or omitted to be uigrd at the trial at inm 
 jjrias. Doc d. Gord vs. Need-;. 2 M. & W. 129; lien. vs. Xicks. :! Dowl. Ki:'. 
 Short vs. Oallowav, 11 Ad. & E. 2S : JIasler vs. Oarpenler, I! C. li. (X. S.) 1'2. 
 
 10 
 
136 RIGHT TO BEGIN. 
 
 § 83. •' But if the plaintiff in the outset thinks fit to call any 
 evidence to repel the justification, then I am of opinion that he- 
 should go through all the evidence he proposes to give for that pur- 
 pose, and that he shall not be permitted to give further evidence- 
 in reply ; otherwise there would be no end to evidence on either- 
 side." And in Sylvester vs. Hall,(a) which was an action of tres- 
 pass and false imprisonment, with the general issue and plea irn 
 justification, the same rule was laid down by the same judge.. 
 Vide, also, "Williams vs. DavieB.(i)(l) 
 
 (a) R. & M. 253, n. (6) 1 Cr. & M. iCj. 
 
 1. In Williams vs. Davies, supra, the action was assumpsit on several bills of 
 cxcliang-e with common counts. The defendant pleaded non-assumpsit, the stat- 
 ute of limitations, and a set-off. At the trial before Lord Lyndhurst, C. B., at 
 the Middlesex sittings, after last Michaelmas term, the plaintiff, in the first in- 
 stance, proved a sum of '22.i'. 6s. 8d. to be due to him from the defendant, and 
 said that he had documents to prove a larger sum to be due, which he should not 
 put in, unless the defendant proved his set-off. Chilton, for the defendant, insisted 
 that the plaintiff was bound to prove his whole demand in the first instance, and: 
 had no right to go into evidence, in reply, having in part met the defendant's' 
 case. The defendant then proved his set-off to a larger amount than the plain- 
 tiff had proved. In answer to the defendant's case, plaintiff proposed to prove- 
 two bills of exchange which he had accepted for the defendant's accommodation,, 
 and had paid ; and the learned judge, having allowed him to do so, a verdict was- 
 found for the plaintiff. Chilton now moved for a new trial on the ground,, 
 amongst others, that the evidence in reply had been improperly received, and 
 that it was too late alter the plaintiff had closed his case to give evidence of 
 demands which he had not made part of his case in the first instance. He reliecE 
 upon Eees vs. Smith, 2 Stark. N. P. 31, where liord Ellenborough states the- 
 rule to be that when, by pleading or by means of notice, the defence is known,. 
 the counsel for the plaintiff is bound to open the whole of the case in chief — he- 
 cannot proceed in parts ; that when it is known what the question in issue is, it 
 must be met at once. He also cited Brown vs. Murry, R. & ]N[. 254, where LordI 
 Tenterden held that in an action for a libel, where the general issue was pleadedl 
 and also a special justification, the plaintiff might, in the outset, give all the- 
 evidence he intends to give to rebut such justification, or he might do so in reply- 
 to evidence produced by the defendant, but that he was not entitled to give part 
 of such evidence in tlie first instance, and to reserve the remainder for a reply to- 
 the defendant's case. 
 
 Lord Lyndhurst, C. B. : "The con^iequencc would be that the plaintiff might 
 
RIUIIT TO BEfllN. 137 
 
 S ^4. Ilaviiii;- thus ex'pltiiued the general principles by which 
 the question of the right to begin is to be determinetl, we now 
 proceed to give a general summary of their application to vari- 
 ous forms of civil proceedings ; and first of the right to begin 
 wheri issue is joined on pleas in abatement ; and here it is to be 
 remarked tlint all pleas in abatement are not similar in form ; in 
 some the afhrmative lies on the plaintiff, and, in others, on the 
 defendant, and there can be no possible reason for supposing that 
 any diffei'ence exists between them and pleas in bar, so far as the 
 onus probandi and right to begin are concerned ; many of the 
 cases above fpioted were of the former class, and there can be no 
 doubt that both are governed by the same general principle, 
 namely, that the party on whom the onus probandi lies has a 
 right to begin, except in those cases provided for by the rule of 
 July, 1833.(a) 
 
 § 85. Where a plea in abatement is for the nonjoinder of a 
 person who ought to have been made defendant, although there 
 are some irreconcilable decisions to be found on the subject, yefr 
 the weight of the authorities, and the reason of the thing show 
 that the onus probandi and right to begin are with the defend- 
 *57 ant. The authorities which seem in *favor of the contrary 
 opinion are these: In Young vs. Bairner,(5) which was an action 
 of assumpsit for work, &c., in repairing a ship of which the 
 defendant was owner, defendant pleaded that he was joint owner 
 together with others named in the plea, to which the plaintiff 
 replied that the defendant had undertaken sokl;/ to pay, on which 
 issue was joined. Here the plaintiff began, but the cjuestion does 
 not apj)ear to have been raised. In Stansfield vs. Levy,(c) which 
 was assumpsit for goods sold, to which the defendant pleaded 
 
 (a) See tit. Case. Ih) 1 Esp. 103. (c) 3 Stai'k. 8 
 
 have to go into proof of man}' years' traiLsactions when it would be quite unnec- 
 essary to the claim which he made. Either of the two ways of proceeding may 
 be correct ; and it must be left to the discretion of the judge to admit the evi. 
 dcnce or not ; and if ultimately the evidence is received, it cannot be complained 
 of. "J'hc better rule is to adhere to the practice laid down in § 31. n. 1." 
 
lt)S KlIiUT TO BElJIN'. 
 
 tii:M. (lie "ontriict, if any, was made jointly with himself and one 
 C, nil wliich issue was joined, the plaintiff began without oppo- 
 8iti"ii. And in Hare vs. Munn,'//)which was assumpsit for money 
 Iciu. Ml which defendant pleaded the nonjoinder of one hundi-ed 
 ami wixty-three persons named in the plea, Lord Tenterden 
 allov\'cd Ihe plaintiff" to begin. 
 
 , ^ HVi. in answer to these it may Ije said, first, that in the case 
 af ^'l>I♦l);Jr vs. Baii'ner,(/;) the plaintiff was clearly entitled to 
 begin, because his replication, instead of taking issue ou the fact 
 of i.lie joint ownership, alleged that the defendant had undor- 
 takei* :<i'lely to pay, thus clearly taking the onus probandi on 
 hitnoclf, f-io that this case is not in point. That as to Hare vs. 
 Muiii'Ja.j Lord Tenterden, in the case of Fowler vs. Coster,(a) 
 decided (-he ver^' next day, when Hare vs. Munn was alluded to, 
 eaid. rl:i:jL in that case he allowed the pjlaintiff'to begin only 
 becansL' be thought, from the statement of the evidence about to 
 be adduced, that it would be more convenient to take it in the 
 fir.^t instance, but that he did not o.n that occasion lay down any 
 prnju'r.i) rule ; and in the same case of Fowler vs. Coster,(a) which 
 wa<^ :n) action of assumpsit by an indorsee against the acceptor of 
 %S twK bills of exchange, to which defendant ^pleaded that 
 tlie promises, if any, were made jointly with one C, on which 
 iesne waa joined. Lord Tenderden held that the defendant was 
 eutitlcd <.o begin. 
 
 I 87. So that the only authority which seems to establish tlie 
 plaiHCitt's right to begin in this class of cases is that of Stansfield 
 vs. ! iev^v,(c) where, however, the question was not directly raised, 
 and fu which may be opposed not only the case of Fowler vs. 
 Oos<.ei', -above mentioned, but the following. In Passmore vs. 
 Bo(islield,((^) which was an action of assumpsit on an attorney's 
 bill , t.i) which was pleaded that several persons named in the plea 
 ought to have been joined as co-defendants, on which issue was 
 joiucd, aud the defendant began without discussion ; and in the 
 case <»f Morris vs. Lotan,(e) which was an action of assumpsit for 
 
 fci ! fe|. i".!. (6)1M. &M.2H. (e) 3 stark. 8. (d) 1 Stark. 290, (e) 1 M. & E .-i.'iS, 
 
RIGHT TO BEGIX. l-tU) 
 
 goods sold, to whioh the defendant pleaded the nonjoin.!,;,- of 
 several contractors, it was held by Denman, C. J., that the dell^iid- 
 ant was entitled to begin, {i. e., after admitting the dniDii/.vs.') 
 For the authorities against which position, vide mpra.{a) 
 
 § 88. But where the defendant pleads in abateni.iit; t.he 
 nonjoinder of a person who ought to have been made a p/A'/Rtiff 
 in the suit, the rule seems difFerent ; and it certainly apf-eais that 
 the onus lies on the plaintiff, as he, by traversing the Ijiof (.liaA 
 the promises were made to him and another person, undofiiikcs 
 to establish that he has in himself alone a complete right of :n;tioa. 
 There is at least one case in the books which bears out tbi-^) jxvsV 
 tiou : it is that of Davies vs. Evans,(/>) which was an :.»jtmit of 
 assumpsit for work, &c., in repairing a road, to which the fi-'fond- 
 ant pleaded that the promises had been made to the plaiutill;' mid 
 one J. S., and not to the plaintiff alone, oh which i~!-,i»'' was 
 joined ; and the plaintiff's counsel argued that the (?i>l«!uttant 
 *59 *ought to begin, as the affirmative lay on him. Saiij poi> 
 Parke,B.: "laniof opinion that the plaintiff oughttobogMi."(I) 
 
 § 89. If, in addition to these authorities, we try the <fiii-iLioQ 
 by the two tests mentioned in the last chapter, which weix- i^'ivea 
 by Alderman, B., in the cases of Amos vs. Hughes (e) and Wills 
 vs. Barber,(fZ) [aupra p. 18,) we shall arrive at the same msult. 
 Suppose in Davies vs. Evatis (h) no evidence at all had beoit i^iveii, 
 who must have succeeded '; The defendant ; because the |(.l;i,n> 
 tiff had, by his replication, undertaken to show (/ rujhi (rf o.etum 
 ill himself alone; and when the nonjoinder of a co-defe)tdiU>t m 
 p)leaded, supposing no evidence tolje given, the plaintiff iofwf,-««- 
 
 (a) It is submitted that tlie^io casd-^, as (h) C. & P. 611). 
 
 exhibited, show nothing but special pleas (a) 1 AI. & Kob. Alii 
 
 amounting to the general issue. See p. (d) 1 Mecs A Wil-. j-j.. 
 
 xif, n. 1. They wei-e general issue because 
 they -were not technically pleaileJ as 
 such. See§89, n.l. 
 
 1. This conclusion is simply erroueou.'-. Pk'.us in abatement an; aj1ir«».;,tjs'e 
 pleas, and the defendant who pleads them ha'^ the onus, and for this riv.e.^ijii has 
 the right to begin, Jewett vs. Davis, (J X. H. 518; Shepard ct al. vs. Oiv.v.;,^, 14 
 How. 505, 512; Fowler vs. Coster, 3 C, it 1' 403; Fowh^r vs. Byanl, 1 M':(>>.yt. 
 21 '.',. See ne.\t note. 
 
I-IO RIGHT TO BEGUN. 
 
 ceed, as the promises are admitted to have been made by the 
 d'efendant, who only alleges that another person ought to have 
 been joined with him ; therefore, according to the first of those 
 tests, the plaintiff should begin in the first case, and the defend- 
 ant in tlie second, which agrees with the authorities. And if 
 the question be submitted to the second of those tests, viz., that 
 given in Mills vs. Barber,(rt) a similar result will be arrived at.(l) 
 
 (a) 1 Mees. & Wels. 42.5. 
 
 t. The learued author has misinterpreted the case of Davis vs. Evans It con- 
 tained jio plea in abatement. The plea was a feint at a special plea in bar, but 
 in fact it was the general issue and nothing more. The matter might have been 
 pleaded in abatement ; and because it was not technically pleaded in abate- 
 ment, it was treated as it ought to have been, as plea in bar, Banks vs. Lewis, 4 
 Ala. 599. Whether it be abatement or bar is to be known by its conclu.sioni 
 .Jenkins vs. Pepoon, 2 -Johns. (X. Y.) Cas. 312 ; Schoonmaker vs. Elmendorf. 10 
 Johns. 49. The plea must conclude with a verification, and the replication 
 thereto must conclude to the contrary. Morrow vs. Huntoon, 25 Yt. 9; (seep. 
 11 ;) Wilkes vs. Hopkins et al. So a plea in the form of a plea in bar which sets 
 up matter that can only operate in abatement may be treated as a nullity, Rob- 
 inson vs. Fisher, 3 Oai. (X. Y.) 99; and although it conclude in abatement, if 
 may be demui-red to as a plea in bar, Ilargis vs. A^-ers, 8 Yerg. (Tenn.)467 ; and 
 if it be defective it may be stricken out on motion. 
 
 In general, pleas in abatement are not favored. As they do not deny the 
 merits of the plaintiff's claim, but merely delay his remedy, they are not aided by 
 any intendments. They must be framed with entire certainty and accuracy, and 
 all doubtful points will be construed against the pleader. Correctness of form is 
 matter of substance, and any defect of form is fatal to the plea. Anonymous, 1 
 Hemst. 215 ; Townsend vs. Jeffries, 24 Ala. 329 ; Roberts vs. Heim, 27 Ala. G78 ; 
 Moss vs. Ashbrook, 12 Ark. 369 ; Maiidell vs. Poet, 18 Ark. 236 ; Thompson vs. 
 Lyon, 14 Cal. 39 ; Larcoe vs. Clements, 36 Oal. 132 ; Wadsworth vs. Woodford. 
 1 Day 28 ; Parsons vs. Ely, 2 Conn. 377 ; Clark vs. Warner, 6 Conn. 355 ; Hay- 
 wood vs. Chestney, 13 Wend. 495 ; Fowler vs. Arnold, 25 111. 284 ; Hazzard vs. 
 Haskell, 27 Me. 549 ; Barnham vs. Howard. 31 Me. 569 ; Beldin vs. Laing, 8 
 Mich. 500; Prosky vs. West, 16 Miss. 711; Ellis vs. Ellis, 4 E. I. 110; Settle 
 vs. Settle, 10 Humph. 505 ; Pearson vs. French, 9 Yt. 349. 
 
 The author quaintly asks : " If no evidence had been given in Davis vs. Evans, 
 who must have succeeded?" The answer must be determined by the issue on 
 the record. See p. 11, n. If the matter pleaded be in abatement and the plea 
 be in bar, no answer can be given, for there is no istuo, Eobinson vs. Fisher 
 
RISIIT TO BEGIN. 141 
 
 §; 9U. From the consideration of pleas in abatement we pat;s 
 ■on to consider the application of the general principles above 
 •estal)lished, when issue is joined on a plea in bar. And, first, it 
 may be laid down, that in almost all species of assumiisit the new 
 Tule does not apply, and the party begins on whom the onus pro- 
 bandi is cast by the record. (1) Most of the cases decided rela- 
 '.tive to this form of action have been elsewhere noticed in difier- 
 
 1. Assumpsit is technically uu action on the case, Cartev vs. White, 32 111. 509. 
 4is damages alone are the object of the action. It lies concun-eLitiy with debt on 
 .all the usual money demands, Mahafley vs. Petty, 1 Ga. 261 ; Moses vs. McPcr- 
 .lau, 2 Burr. lOUS : Spratt vs. McKinney. 1 Bibb. 595 ; Brooks vs. Scott, 2 Munf. 
 (Va.) 34] : 8 Gill it J. 333 ; the amount claimed being lifpiidated, Kann. vs. 
 Hughes, 7 T. E. 351 ; Ruder vs. Price, 1 H. Bla. 547. The distinguishing fea- 
 •ture between assumpsit and debt is. that in the former action the gist is laid on 
 
 ■supra, except that the case stands on default. The case is so mcagerly reported, 
 it is impossible to tell what view the court took of the plea ; but if it was in fact 
 technically pleaded in abatement, it was an afErmati\'e plea on authority, and 
 defendant was entitled to begin. See authorities aljove. But the matter was 
 Available under the general issue, as it is well-settled law, that the objection that 
 there are too many or too few parties plaintiff, in action cr cmtl njctu. may be 
 taken either by plea in abatement or as groiuid of non-snit at the trial under the 
 .general issue. Snell vs. Deland, 43 111. 323 ; Harlem vs. Emert, 41 111. 320 ; 
 Ulnier vs. Cunningham, 2 Me. 117 ; Waldsmith vs. AValdsmith, 2,(). 156 ; Glover 
 vs. Honeywell, 6 Pick. 222 ; Robinson vs. Scall, 3 X. J. L. 317 : Scott vs. Pat- 
 terson, 1 A. K. Marsh 411. 
 
 We have already seen, in uuuierons instances in these notes, that s])eeial pleas, 
 .amounting to the general issue onl)/, do not give the defendant the right to begin, 
 for the reason that they do not admit enough. They must always admit the 
 ■capacity of the plaintiff, so as to relieve him of proof; but this plea denied it 
 ■directly, by alleging a joint interest, which merely negatived plaintiff's right to 
 recover. See p. 11, n. 
 
 Proper parties plaintiff arc so necessary an element in the plaintiff's right to 
 recover, that if this defect appears on the face of the declaration it is (/ause for 
 .arresting or reversing for error, Dol) vs. Ilalsey, 16 Johns. 4(1 ; Howard vs. AVil- 
 <;ox, 47 Pa. 51, or sustaining a demurrer, Blakely, vs. Blakely, 2 Dana 46(1; Sims 
 TS. Harris, 8 B. Hon. 55; Stevens vs. Cofferin, 20 X. II. 150. 
 
 In Condit vs. X'eighbor, 13 X''. J. L. 83, the court says : '-The demurrer is well 
 taken if the claim of the plaintiff, as exhibited in the declaration, is more cum- 
 jirehensive than his right." 
 
142 RIGHT TO BEGIN. 
 
 ent parts of this treatise, y/cfc Young vs. Bairner,(rt) § 25 ; Pass- 
 more vs. Bousfield,(6) § 87 ; Robey vs. Howard,(c) § 43 ; Stans- 
 field vs. Levy,((i) § 85 ; Calder vs. Rutherford,(e) § 4 ; Lacon vs. 
 Higgins//) § 43 ; Hare vs. Mimn/^') § 85 ; Fowler vs. Coster,(/i) 
 *60 § 46 ; Thwaites vs. *Swainsbury,(i) § 37 ; Morris vs. Lotan,(;} 
 § 34 ; Davies vs. Evaus,(/(;) § 88. Subsequent to all of which was 
 decid(>,d Warner vs. Haines,(?) which was an action of assumpsit 
 
 (a) 1 Bsp. 10.1. (d) 2 stark. 8. (g) 1 M. & M.-2tl. (.;) 1 M. & R. 233. 
 
 (6) 1 Stark. 296. (e) .■? B. & B. ;!0'2, (ft) L M. & M. 2il ; 3 C. & P. 46.3. (&) 6 C. & P. 619. 
 (c) 2 Stark. f,M. (J) 3 Stark. 17S. (ij 5 C. & P. 69. (I) 6 C. & P. 717. 
 
 the word " promised," and in the latter •' agreed," Cruclcshank vs. Brown, 10 111. 
 "ivt ; JMcGinnity \p. Languereiine, id. 101. This is. no doubt, one of the tests the 
 author refers to in I 46, ante, where the plaintiff is entitled to recover the araouut 
 stated in the declaration, or none at all." It is submitted that in all actions of 
 assumpsit the party who, without introducing any evidence, is liable to have judg- 
 ment for nominal damages rendered against him, has the right to begin, and such 
 questions as measures and assessment of damages, proof of value, &c., arc in' 
 natural and logical order introduced with evidence in reply to defendant's case or- 
 affirmative plea, Harnett vs. Johnson, 9 C. & P. 206 ; Ashton vs. Perkes, id. 231 ; 
 Chapman vs. Emden, id. 712 ; Ilill vs. Pox, 1 F. fr P. 130 ; Ovcrburg vs. Mug- 
 grige, id. 137 ; Cotton vs. James, 3 C. & P. 505 ; Cooper vs. AVhately, id. 474 : 
 Viele vs. Germania Ins. Co., 2G Iowa 9 ; jNfcLecs vs. Pelt, 11 Ind. 218 ; Patton. 
 vs. Hamilton, 12 Ind. 250; X. Y. Dry D. Ci. vs. M'Intosh, 5 Hill 290; anlu 
 I 34, n. 2. So Cannan et al. vs. Parmer, 2 Car. & K. 746 ; Woodgate vs. I^tts, 
 id. 458 ; Bonfield vs. Smith, 2 M. k E. 519 are authorities that affirmative pleas 
 to the common money counts admit the amount claimed in the plaintiffs par- 
 ticulars of demand. Sec, also, where particulars are declared on with notes 
 evidently for the same consideration for which the notes wove given. See, fur- 
 ther. Cox vs. A'ickerf, 35 Ind. 27 ; Baltimore, A-c. P. R. Co. vs. McWinney, 3(1 
 id. 436; Brenau vs. Securify Ins. Co., 4 Paly 296. It maybe laid down as a 
 general principle that upon a breach of a valid contract the party complaining 
 is entitled to some damages, although it may be difficult to ascertain the amount, 
 and they may be nominal only, Devendorf vs. Wert, 42 Barb. 227: Pitch vs. 
 Fitch, 3 J. k Spr. 302; Boorman vs. Brown, 3 <J.B. 515; Marzetti vs. Williams, 
 
 1 Barn. & Ad. 415; Owen vs. O'Reilley, 20 llo. 603; Pj'o vs. Mann, 10 Mich.. 
 291 ; as if an agent violate instructions, although no actual damage ha shown,, 
 nominal damages will be awarded, Frothinghani vs. Everton, 12 X. H. 239; and 
 so if a sheriff neglect his duty, although no actual damage arise. Glexen vs. Rood, 
 
 2 Mete. 490 ; Bruce vs. Pettengill, 12 X. 11. 341. 
 
RIGHT TO BEGIN. 143 
 
 by indorsee against the acceptor of a bill of exchange drawn by 
 T. S. on defendant, and indorsed to plaintiff, and also on an account 
 stated ; to ^yhich defendant pleaded, first, to the first count, that 
 the bill was accepted for a debt due from defendant to T. S., at 
 the time of tbe discharge of the defendant under the insolvent 
 debtoi-s' act, of which the plaintiff had notice, and that after the 
 acceptance the defendant was discharged by the Insolvent Deb- 
 tors' Docket from the debt for which the bill was accepted. 
 Second plea to first count, that the defendant was indebted to T. 
 S., and was a prisoner for debt in the Fleet, and had petitioned 
 the court for his discharge, when T. S. threatened to oppose his 
 discharge ; to prevent which he accepted this bill, whereof at th« 
 time of the indorsement the plaintiff" had notice ; that defendant 
 was afterwards discharged as an insolvent debtor ; and to the 
 account stated he pleaded the general issue ; the replication to 
 
 The pleu of the general issue puts the plaintiff upon the proof of his whole 
 case, and entitles the defendant to give evidence of anything whit-h shows that 
 the plaintiff ex cquo et bono ought not to recover, Falconer vs. Smith, IS Pa- 
 ISO ; Heck vs. Shener, 4 Serg. & E. 249 ; unfe p. 96. 
 
 ."Special pleas in this action must admit the cttntract us slated in the decUuw 
 tion, and show either a performance liy the defendant or facts Avhicli in law 
 excuse or justify the non-performance of it. ? 7(i, antr ; Dibble vs. Duncan, S 
 JIcLean 553. 
 
 If the plea deny the contract as declared on argumentatively or inferreiitially . 
 the plea amounts to the general issue, ante pp. 'i-t. s8, for, so far from confessini: 
 the contract, it denies it, -Armstrong vs. "Webster, 'M 111. li.S.'i; Goodrich vs. Rey- 
 nolds, 31 id. 490. 
 
 So where to an action for work, labor and materials, the defendant pleaded 
 that by agreement the amount was to be taken in malt ami beer, and that he 
 was always ready and willing to deliver such malt and beer to the plaintilf ; this 
 was held bad, as amounting to the general issue, for it denied the contract stated 
 in the declaratioii, Collingbournc vs. Mantell, .") Mocs. & ^^'. 289 ; Dickeii vs. 
 Xeale, 1 id. o.'iG; Cleworth vs. Pickford, 7 id. 314: Morgan vs. Pebrer, 3 Biiig- 
 (X. C.) 457 . Lyall vs. Higgins, 4 Q. B. .328 ; and wherever the plea qualifies tht^ 
 contract .stated in the declaration, and introduces a new stipulation into it, it is 
 bad as amounting to the general issue, altliough, in truth, it only set out whaJ 
 was the actual agreement between the parties, Nash vs. Breeze, 11 Mees. it "\V. 
 352 : 'Williams vs. Vines, 1 Dowl. d- L. 710. See, further. <iii/<' p. 133. 
 
144 RIGHT TO BEGIN. 
 
 the iirst and second pleas traversed the notice, and issue joined ; 
 ^nd per Lord Denman ; " Defendant must begin and prove the 
 notice." 
 
 § 91. Vide, also, subsequent to this case, those of Homan vs. 
 ■Thon)pson,(a) Smart vs. Rayner,(&) Mills vs. Oddy,(c) and Faith 
 vs. M'Intyre,((i) p. 52, 53. Next comes that of Baker vs. Mal- 
 -comb,(e) which was assumpsit by indorsee — acceptor of a bill 
 •of exchange, to which the defendant pleaded, that the bill had 
 been altered alter acceptance, without consent of the acceptor, by 
 changing two months into five months.(l) Sed per Tindal, C. 
 -J. : "Defendant ought to begin." Vide, next, Amos vs. Hughes,(/) 
 § 5, and Coxhead vs. Huish./^) § 65. Then comes Eichardson vs. 
 *61 Fell,(/i) which was an action *for money lent, to which the 
 -defendant pleaded payment. The under-sheriff allowed the 
 ■defendant to begin ; and per Coleridge J. (in the Bail Court) : 
 "He was right in so doing." And, lastly, lidc Shilcock vs. 
 
 (a) 6 C.&. p. 717. (c) 6 C. & p. 7iS. (e) 7 C. & P. 101. (fir) 7 C. & P. 63. 
 
 (6) 6 0. & P. 721.' ((() 7 C. & I'. 4-1. (/) 1 M. & Rob. 464. (ft) 4 Dowl. Pf. 
 
 1. Ill all written coiitract!: iulcr vivos in which alterations or interlineations 
 appear, about which alterations uiul interlineations there is nothing suspicious, 
 -which is a (luestion of law, Sirrine vs. Briggs, 31 Mich. 445, the presumption is 
 that thej' were made before the execution, and the burden of proving thej' were 
 made after falls on the assailant, and the question then goes to the jury, Jourdon 
 v,s. Boyce, 33 Mich. 302 ; Little vs. Herndon, 10 Wall. 31 ; Milliken vs. Marlen, 
 ■66 111. 13. 
 
 As to negotiable paper, it appears that the law makes no presumption, but 
 leaves the cpiestiou of prejudicial alteration to be determined by the jury on all 
 the evidence of the case, though when such alteration is apparent, and if favoi'- 
 ablc to the party offering the note, then he must bear the burden of the expla- 
 nation, Taylor vs. Mosely, 6 C. & P. 273 ; Carris vs. Tattershall, 2 M. & Gr. 890; 
 Knight vs. Clements, 8 A. & E. 215 ; Wilde vs. Armsby, 6 Cush. 314 ; Hunt vs. 
 ■Oray, 35 N. J. L. 227 ; Morris-vs. Bowman, 12 G-ray 467 ; and where the altera- 
 tion is prima facie unlawful, the burden that it was lawfully made is upon the 
 holder. Hill vs. Cooley, 46 Pa. 259 ; Smith vs. IT. S., 2 Wall. 219. 
 
 Lines drawn across a bond or note raises a presumption that it has been satis- 
 lied. Pitcher vs. Patrick, 1 Stew. & Port. (Ala.) 478 ; and an entry of credit on 
 -a. note which is erased is evidence of payment unless disproved, Graves vs. Moore, 
 7 T. B. Mon. 341. 
 
RKiKI TO BBlilX. 14') 
 
 rassmau,'//) § S, Smith vs. Daviey,'e) ^ 9, and Edwards vs. 
 Jones,(./') § 32. 
 
 § 92. We have, however, ah-ead^' seen, in tlie case of Harri- 
 son vs. Goukl,(</) su2)r(t § 6B, that in an action of assumpsit for 
 breach of promise of marriage, the plaintiff has always a right to 
 l)egiii by virtue of the new rule.(l) 
 
 In actions on the case the new rule requires to be particularly 
 iittended to. (2) In such of them as are brought for libel or slan- 
 
 <d, 7 C. & p. -291. (e, 7 C. & P. :.07. (/) 7 C. & P, i.;i;:i (u) 7 C. & P. .iSU 
 
 1 Ten ye;irs after the new rnles were iulopteil, sitprrf ? 57. it wtis ruled that 
 -' If in an action for the breach of promise of marriage the defendant plead thai, 
 fcefore any lireach of the promise the parties mutually agreed to exonerate each 
 other from their promise, and this be denied Ijy the replication, the defendent 
 is entitled to lieiiiu.' Plaintifl"s counsel insisted that he was going for heavy 
 damages, and on the authority of Carter vs. Jones demanded the right to begin, 
 iidmitting also that the proof of the issue lies on the defendant. Lord Abinger, 
 ■C'. B., said : ■■ We think that in this case the defendants have the right to begin." 
 -Stanton vs. Paton and wife, 1 Car. & Kir. 14S. 
 
 A man is not bound by contract to marry a lewd woman entered into in igno. 
 ranee of her character. Vantorch vs. Griffin, 78 Pa. .')04; nor by an agreement to 
 marry when a divorce should be decreed Ijetwcen himself and wife, in a suit then 
 pending, it l>eing contrary to pu).ilie policy, and void. Noire vs. Brown, 38 X. .1. 
 L. :22b : I'addock vs. Robinson, ij'i 111. 99 ; so a party may plead his own irapo- 
 tency successfully, (Julick vs. Gulick, 12 Vr. 13. 
 
 It is submitted that these propositions are sufficient for the foundation of an 
 jiffirmative plea of confession and avoidance, so as to give the opening to the 
 pleader, and particuhu-ly so under the codes which have aliolishcd the general 
 issue. 
 
 2. As the •■ rule '' (aiifc p. 114 Ar n.,) or "arrangement" (a)(<c p. 117 n.), or 
 -'not a rule of general application," (on p. 118 & n.,) has not been adopted in 
 this country, (p. 114, n.,) and as it is not likely to afflict enlightened jurispru- 
 dence in the future, M-e may return to consider the right to begin in this action, 
 -which is about the only one whei-e the mere forms of action have not been abol- 
 ished, whose remedial functions are adapted to the ever-growing complexity of 
 the law of remedies. Pemedics. like the evolutions in nature, are tending to the 
 •complex from the general, Pliil. Hist. Ev. — The action of " Case ' is suffi- 
 -ciently general to include assumpsit, as shown in n. 1 to <! 92. The right to begin 
 15 sufficiently illustrated a< to the sp:>cies of case called assumpsit. The nisr 
 intended bv tiie author is, no doul)t, the species which are <listinctly loiiiions. 
 
146 RIGHT TO BEGIN. 
 
 dcr, [vide Cooper vs. Wakley,(6) § 49, Wood vs. Priiigle,(c) § 55, 
 and Carter vs. Jones,((r/) §§ 57, 62, the plaintiff always begins. 
 The test seems to be that given by Tindal, C. J., in Reeve vs.' 
 Underhill,(e) § 63, viz., the action must be brought for heavy 
 unliquidated damages sought in respect of some injury to the 
 person or reputation, and of a malicious character. On this- 
 jjrinciple it is, in the absence of authority, presumed that actions 
 on the case for malicious pro,secution or malicious arrest, together 
 
 (h) iO.&V.m. (c) 1 M. & n. 1277. (d)ac. &P. 6). (e) 6C. & p. 673. 
 
 If the facts -wliicli are the foundation of tlic remedy are not '' tortuous," but are 
 contractual, the action must be on the contract. Butler vs. Collins, 11 Cal. 391, 
 and where the liability to do an act merely from an argreement to do it upon a 
 good consideration, Courtonay vs. Earle, 10 C. B. T3 ; 16 Jur. 936, and there is no 
 such relation between the contracting parties as would involve a common law 
 duty in the performance, wholly independent of and ultra the contract, then the 
 uon-performancc and breach is not tortuous, and the action must be on the con- 
 tract, assumpsit, covenant, etc., id. 
 
 But in all cases in which the la^Y imposes a duty in respect of the business of 
 the contract in addition to the private agreement of the parties, the breach i.= 
 remediable by action on the contract or in tort purely, at the election of the- 
 injured party, Leggo vs. Tucker, 2 Jur. X. S. 1235 ; 1 H. & X. ,500 ; Brown vs. 
 Boorman, 11 C. it P. 1 ; 3 Q. B. .511. 8o either action may be supported for a 
 false warranty on the sale of goods and chattels, Everton vs. Miles, 6 Johns. 
 138; Hallock vs. Powell, 2 Cai. 216; Williamson vs. Allison, 2 East. 446; 
 Mahurin vs. Harding, 28 X. H. 128 ; Carter vs. Glass ; (Mich. June 23, 1880,) 
 10 Bept'r 466 ; for breach of duty by an attorney, Simpson vs. Spraguc!, G Me. 
 470 ; Church vs. Mum.ford, 11 Johns. 479 ; for breach of duty by a common car- 
 rier, Lockwood vs. Bull, 1 Cow. 322 ; Bell vs. Ward, 1 Dana 147 ; Tattan vs. 
 Great Western E. R. Co.. 2 El. & El. 844: 6 Jur. X. S. 800 ; against a baileo 
 for negligence, and if case be elected .i count in trover may be joined, Ferrier vs- 
 AVood, 9 Ark. 85 ; in general, any action for negligence as it implies a duty. 
 Kahl vs. Love, 8 Vr. 5 ; and when the gist of the transaction is tort, if it arises- 
 out of a contract, Sto}-el vs. Wescott, 2 Day (Conn.) 422 ; Bulkley vs. Storer, id. 
 531 ; \"asse vs. Smith, Craneh. 226. 
 
 The election must be exhibited by the declaration. Booth vs. Farm. Xat. Bank 
 of K., 65 Barb. 457 ; Welsh vs. Darrah, 52 X. Y. 590 ; wherein the court says, 
 "That in assumpsit the pleader must always allege that the defendant imdertooJc 
 and promised," which invites a plea of nov-assnmjjsit, licmon vs. Morton, 2 
 Ashm. (Pa.) 150 ; Bird vs. Miiyor, 8 Wise. 362. The assumpsit elements, /. c. 
 
IIUUIT TO BEUIN. l^J 
 
 ^vith actions for criminal conversation and seduction, must l>e 
 •considered as coming within the rule. V/'dr, also, Bowles vs. 
 Xeale,(/') § 6]. 
 
 ^ 93. Actions of covenant seem to be governed in this respect 
 by the same rules as those in assumpsit, and, as has been shown 
 above, although the authorities are not uniform, yet tbe better 
 •opinion is tbat the new rule does not extend to them. Vidr 
 Reeve vs. lTnderhi]l,(/7) ^ 63, Lewis vs. Wells,(/,) § 64, Wooten 
 vs. Barton,(/) § 65, Soward vs. Legatt,(/-) § 0, and Absolon vs. 
 Beaumont,(/) g 68.(1) 
 
 (./■) 7 C & p. ::k; ih) 7 0. & 1>. iil . (7.) 7 c. & p. iic! 
 
 (») li C. & P 77.; (J-1M.& K..MS, (l< \ M &\l.ili. 
 
 1. The legal effect uf the seul reiulci's covenant analogous to special as.suni|isil. 
 and when defendent pleads affirmatively, he is entitled to begin. In covenant 
 for non-repair the defendant pleaded aHiniiativoly, \vhich was denied by the repli- 
 cation. Coleridge. J., -^aid : "The old rule was to look at the record and see on 
 ■whom the affirmative lay; and T think the now rule of the j'uhji'.': has not 
 varied it in actions of contract.'' Lewis vs. ^Vills, 7 C. & V. 221 ; Wooton vs. 
 Barton, 1 M. A- Rob. .'ds; De,.,. d. Trnstoes A- C. U. Rowland, C. fr T. 734. 
 Where the defendant is defaulted in an action of covenant, the plaintiff is not 
 bound to prove the averments in his declaration, Courier vs. Crahani, 1 Oh. 34-7* 
 bat to prove damages only, Simonton vs. Winter, .5 Pet. 148 ; and in his proof of 
 damages, the evidence will be confined to the breaches set forth in the declaration, 
 Mathews vs. Sims, 2 Mills (.'-^. C.) Const. 103 ; Chapman vs. Emden, 9 C. ctR. 71. "i. 
 The plea of " coveirant performed" with no ahsr/)ii_' lior, to a declaration aver- 
 ring performance, admits plaintiff's jierforniance. Zents vs. Leguavd, 70 Ra. St. 
 102 : .'SinKinton vs. AYinti.'r. supra. 
 
 the promise, .was loft out in Carter vs. (4Iass, supra., and i>n that account was 
 lield a tort and not contract. But wdiy elect? The language of Solden, .1., in 
 Union Ba?ik vs. Mott, 27 X. Y.. ''that its object is not to recover for monev had 
 and received ))y the defendants to the plaintiff's u.sc (thus waiving the tort,) l)ut 
 to obtain judgment for the damages which tlic plaintiff has snstaijicd through 
 the fraudulent conduct of the defendants. 
 
 •' This being the true foundation of the action, and all tnrts, committed liy moi-e 
 than one person, furnishing several as well as joint causes of action, the right of 
 action survived as well against the personal representatives of the decciised 
 (because originating out of a contract), as against the surviving defendant. Tiic 
 surviving wrong-doer could not, however, in a common law action to recover dam- 
 ages, be joined with the representatives of his deceased ass(iriaf(;, fcu' tlic rea^ 
 
148 RIGHT TO BEGIN. 
 
 § 94. The same may also be said of actions of debt, which 
 seem to partake some of the nature of covenant and others of 
 
 sou that there is no joint liability, arid neither the same judgment could lie ren- 
 dered nor the same execution issued af>'ainst both.'' 
 
 As to the distinction between trespass and case, the court say, in Plowman v.'!. 
 Foster, 6 Coldw. 52 : " There is an essential difference between actions of tres- 
 pass and trespass on the case ; the first is atriiiti jurU, and matters in excuse or 
 justification must be pleaded specially. The latter is founded in the equity 
 and justice of the case, and whatever would, in equity and conscience, 
 under .existing circumstances, preclude the plaintiff from recovering, may be given 
 in evidence under the general issue. The defendant is not bound to plead hi.s 
 defence speciallj-. because the plaintiff must recover upon the justice and con- 
 .-^cienee of his case, and that only." 
 
 An action on^thc case will not, in general, lie for an injury which is the direct 
 result of an act done with force. For such an injury trespass is usually the- 
 proper remedy, Sinnixon vs. Daugan, 8 N. J. L. 226 ; "Winslow vs. Beal, 6 Call. 
 44 ; Clay vs. Sweet, 1 .J. J. Marsh 194 ; Case vs. Mark. 2 Ham. (0.) 169 ; Ogle- 
 vs. Barnes, 8 T. R. 190. 
 
 Either case or trespass will lie where an injury to the plaintiff results from the 
 immediate force of the defendant, and is caused by carelessness and negli- 
 gence, and is not wilful, Breunan vs. Carpenter, 1 R. I. 474 ; Howard vs. Tyler, 
 46 Vt. 683 ; Frankenthal vs. Camp. ,5.t 111. 169. The question, then, is, can the- 
 defendant obtain the right to open and close in actions on the case ? Spencer, C- 
 .!., in Bank of Aub. vs. Weed, 19 Johns. 302, says : " Any grounds of defence 
 which admits the facts in the declaration, but avoids the action by matter which 
 the plaintiff would not be bound to prove or disprove in the first instance on the 
 general issue, may be pleaded specially," Maggert vs. Hansbergen, 8 Leigh. 537; 
 Bait. & 0. R. R. Co. vs. Polly, 'Woods & Co., 14 Gratt. 454. Each case must 
 be examined by itself, and the rules of \&\\ applied to its solution. Whenever aie 
 affirmative plea can be pleaded, and is actually pleaded, the right to open and! 
 reply will be obtained. 
 
 In defamation, a plea that the words spoken or written was in a legislative or 
 judicial proceeding is affirmative, Sydam, vs. >[offatt, 1 Sand. 464, ante 121-2, 
 but otherwise where the words are hwi prima facie privileged, becaiise" malice" 
 is an element which cannot be justified by plea, ante 122, n., yet where a com- 
 plete justification on the truth of the communication is pleaded, it is affirmative,. 
 ante p. 120. So a special plea of contributory negligence is a plea amounting tO' 
 the general issue, as the burden of showing that the plaintiff was free from fault 
 is on the plaintiff. Hale vs. Smith, 7k X. Y. 483 ; Reynolds vs. X. Y. C. R. R- 
 
lliailT TO BEGIN. 149" 
 
 assumpsit. ^1) In a case decided previous to June, 1833, Saud- 
 ford vs. IIunt,(Hi) which was an action of debt on bond, to which 
 *62 defendant ^pleaded solvit ad dinn, Park, J., held that the 
 defendant should begin, as that plea alone had the effect of 
 admitting the bond and the execution of it, and therefore cast 
 the affirmative on the defendant. We have already seen that it 
 has been decided, since the new rule, that in an action of debt 
 for a penalty given hj statute, the defendant is entitled to begin,_ 
 if tlie affirmative lies on him, Silk vs. Humphrey ,(n) § 61. 
 
 S 95. In actions of trespass the same principles are to be fol- 
 
 (m) 1 C.&P. 118. (n) 7 C. & P. 613. 
 
 1. And it is held to be immaterial in what manner the obligation wa-^ incuii-ed. 
 01- by what it is evidenced, if the sum owing is capable of being definitely ascer- 
 tained, Stoclvwell vs. U. S., 13 Wall. 5,3; Chaffee vs. U. S., 18 Wall. .ilG ; as 
 upon records Res. vs. Lacose, 2 Dall. 123 ; — specialities Wet. R. R. Co. vs. Hill, 7 
 Ala. 772 : — simple contracts, express or implied, verbal or written, Com. Dig. 
 Debt. A. 9, 1 Chit. PI. 121 ; Trapuall vs. Merrick, 21 Ark. .503 ;— and on statutes 
 by a party aggrieved, or by a common informer, id. ; Stockwell vs. C S , 13 Wall. 
 .531 ; Port Dry D. & Ins. Co. vs. Trustess of Port., 12 B. Mon. 77 :— a rjimntum 
 inrr'iit for work, Xorris vs. Winsor, 12 Me. 21)3 ; Thompson vs. French, 10 Ycrg 
 452 ; Van Dusen vs. Blum, 18 Pick. 209 ; generally on all contracts in deed or 
 in law for the recovery of a sum certain, Underhill vs. EUicombe, 1 M'Clol. & Y. 
 457 : Meakuegs vs. Ochiltree, 5 Port. (Ala.) 395 ; Elder vs. Rouse, 15 Wend. 220. 
 rfoc 2 Waits Ac. A: Def 482. 
 
 Co., oS id. 24S ; Button vs. Hud. R. R. 18 id. 248 ; Gaynor vs. Old Cal. R. R., 
 100 Mass. 208 ; Murphy vs. Deano, 101 id. 466 ; Hall vs. Mathews, 10 Irish L. 
 317 ; but all acts done by lawful authority may and ought to be specially pleaded, 
 Martin vs. Clark, 1 Hemst. 259 ; Mc?ilillan vs. Staples, 37 Iowa 532 ; so of acts- 
 done by statutary authority, Vaughan vs. Taff. V. R. Co., 37 Mc. 92 ; Burroughs- 
 vs. Hous. R. R. Co., 15 Conn. 131 ; Rood vs. N. Y. & E. R. R. Co., 18 Barb. 80r 
 ■Sunbury & E. R. R. Co., vs. Hummell, 27 Pa. 99 ; Mor., ic, R. R. Co. vs. New- 
 ark, 10 X. J. Eq. 352 : and where the plaintiff has consented to the act which 
 occasions the loss, Broomis Leg. Max. 268 ; Ills. Cent. R. R. Co. vs. Allen, 30 
 111. 205 ; Walker vs. Fitts, 24 Pick. 191 ; Phillips vs. Woostor, 36 N. Y. 412. 
 
 But it must be rememljered that a special plea which. amounts to the general 
 is,sue is a defect in form only, 1 Show. 70 ; subject to special demurrer only, Cro. 
 Car. 157 ; 10 Co. 95 ; Com. Dig PI. E. 14; Camp vs. Allen, &>:., 7 Halst. (X. -T.). 
 1 ; Kennedy vs. Strong, 10 .Tohiis. 289. S-e ii.nfe p. 129. 
 
150 IIIGIIT XO BEGIX. 
 
 fo^\•ed as we have mentioned above as applicable to case, viz., to 
 see if the cause of action is for any personal wrong and of a 
 malicious description, which calls for unliquidated damages.(l) 
 In trespass qiiare clansuin frcji'd it was held, previous to the new 
 TTule, that when this action was brought to try a right, the 
 defendant was entitled to begin if the onus probandi lay upon 
 him. Vide Hodges vs. Holder(o) and Jackson vs. Hesketh,(p) 
 § 42. And in Pearson vs. Coles,(9') which was trespass for break- 
 ing the plaintiffs close, to which defendant pleaded libeituii 
 I'cnemenltnn, and several others claiming a right of way over the 
 ioeus in quo, it was held, per Patterson, J., that the defendant 
 should begin; and there can be no doubt that such is still tlje 
 practice. Vide Burrel vs. Nicholson,(r) § 60, which was decided 
 since the new rule. But trespass for breaking a house and tak- 
 ing goods is a diflerent kind of action. Here unliqviidated dam- 
 ages are claimed, (vide the case of Cotton vs. James,(s) § 50,) still, 
 it seems doubtful if the new rule applies, as it is not an injury- 
 to the person, {qiinrc famen, and vide Burrel vs. Xicholson,(/) 
 mpra § 60. 
 
 (0)2Ciimp. S6U. (ry) 1 M. & R. iOo. (s) ;i C. & P. 50i. 
 
 (jp) 2 stark. 51(1. (?■) C C. & P. 202. (t) 6 C. & P. 20i. 
 
 J. Strictly speaking, a right stricti juris is the gist of this action, Plowman 
 TS. Foster, G Cakl. (Tenn.) .-)2, cited in ante ? 92, n., and ivhen tlie trespass is 
 proved, damages, though nominal, follow by operation of law propio vi(jor<\ 
 Clark vs. Boardman, 42 Vt. 667 ; lloward vs. Black, id. 258 ; and unless nomi- 
 aal damages, at least, arc given, a new trial will be granted, Norwell vs. I.'homp- 
 soQ, 2 Hill (S. C.) 4T0 ; and this is imperative, whether the plaintiff be benefitted 
 »r injured )iy the trespass. Murphy ^vs. Pondulac, 23 Wis. 36.5. The gist is the 
 breaking and entering, and an allegation that '■ the defendant broke and entered 
 the plaintiff's close," is a sufiScient averment of possession. Finch vs. Alston, 2 
 Stew. & Port (Ala.) 83 ; Eucker vs. O'Noely, 4 Blackf. 179. 
 
 So upon common law principles the plea of ■' not guilty" operates as a denial 
 that the defendant committed the trespass in the place mentioned, and admits 
 plaintiff's posession, L Chit. PI. 534; Apelby vs. Obert, 16 X. J. li. 336 ; Stone 
 TS. Hubbard, 17 Pick. 217 ; Printz vs. Cheny, 11 Iowa 469 ; 2 C. & M. 23 ; and 
 all matters in confession and avoidance or justification or discharge must lie 
 specially pleaded, Todd vs. Jackson, 2 Dutch 525; Beach vs. Livera'ood. 15 Ind. 
 496 ; "SVard vs. Bartlett, 12 Allen 419 ; Gambling vs. Prince, 2 Xott. Sc U. (S. (;.) 
 
RIGHT TO BKGIN. 151 
 
 § 96. It has already been shown that the not guilty to the 
 force and arms is not a distinct issue, supra p. 128. 
 
 138 ; Hollenback vs. Rowley, 8 Allen 473 ; Sawyer vs. Xewland, 9 Vt. 383 ; 
 Cai-son vs. Wilson, 6 Halst. (N". J.) 43 ; Fidler vs. Smith, 10 Iowa 587 ; Austin 
 vs. Norris, H Vt. 38 ; even thougli the evidence of such matter is furnished by 
 the plaintiff in the proof of his case, Briggs vs. Mason, 31 Vt. 433 ; but evidence 
 in mitigation merely is competent, Collins vs. Perkins, 31 Vt. 624. 
 
 So when plaintiff, in attempting to prove title, proves title in another, the 
 defendant may take advantage of this under the general issue in mitigation of 
 damages, Todd vs. Jackson, 2 Dutch. 526 ; so entering to destrain for rent may 
 be justified under this plea because it is not a trespass — provided it be on the 
 demised premises ; otherwise not, Oliver vs. Phelps, Spen. (N. J.) 180 ; but that 
 defeadant went to the plaintiff's house to collect a debt must be specially pleaded, 
 Vanbuskirk vs. Irving, 7 Cow. 3.3 ; Hatfield vs. Cent. R. E. Co., 5 Dutch. 571. 
 .Since a man does not trespass by entering upon his own land, if each party 
 show an independent title of equal strength, the defendant fails, Heath vs. "Wil- 
 liams, 25 Me. 209; Townsend vs. Kearnes, 2 Watts. (Pa.) 180 ; Caskey vs. Lewis. 
 .> B. Moa. 27 ; because a plea of title simply, admits plaintiff's possession, Apelby 
 vs. Obert, 1 Harr. (X. J.) 336. 
 
 A count for asportation of goods may be joined with a count for trespass, q. c. f., 
 Wilson vs. Johnson, 1 Greene, Iowa 147 ; Heiner vs. Wilco.x, 1 Ind. 29 ; Monlton 
 vs. Smith, 32 Me. 406 ; Carter vs. Wallace, 2 Tex. 206 ; and with a count for 
 au assault and battery, Flinn vs. Andrews, 9 Ired. (N. C.) L. 328 ; Sampson vs. 
 Henry, 13 Pick. 36 ; and a plea justifying the breaking and entering only is 
 sufficient for the whole declaration, Herndon vs. Bartlett, 4 Port. (Ala.) 481. 
 
 All acts done by authority must be specially pleaded, Martin vs. Clark, 1 
 Hemst. 259 ; and in trespass against a sheriff it is not necessary to declare 
 against him in his official capacity, as this authority can be available only Ijy 
 plea, Davis vs. Cooper, 6 Mo. 148. So in actions of trespass de bonis aspor/atis, 
 ''not guilty" admits title and possession of the plaintiff and negates only the 
 commission of the acts of tresspass alleged, Carson vs. Prater, 6 Caldw. (Tenn.) 56."i 
 
 But under the code a general denial admits nothing, and every allegation of 
 the plaintiff may be disputed by any relevant evidence under this plea. Miller vs. 
 Decker, 40 Barb. 234; Ilcim vs. Anderson, 2 Duer. 318 ; Stroud vs. Springfield, 
 28 Tex. 649. 
 
 So the right to open and close must follow the cases in the te.xt, and the gen- 
 eral rules or a new trial'will be granted, Ayer vs. Austin, 9 Pick. 225 ; Scavy vs. 
 Dearborn, 19 X. H. 351. Hee an/c p. 115, n. 
 
 11 
 
152 KIGHT TO BEGIN. 
 
 Ou the subject of trespass for assault and battery,(l) false 
 imprisonment,(2) (and, it is presumed, criminal conversation 
 *63 *and seduction,) the new rule clearly applies. Vide the old 
 case of Bedell vs. E,ussell,(tt) p. 103, and the late one of Atkin- 
 son vs. Warne, p. 120. 
 
 In an action of trespass for shooting a dog, it was held, in the 
 case of Fish vs. Travers,(.'i) sujmi p. Ill, that the defendant was 
 entitled to begin if the onus proband! lay on him, and this being 
 a mere injury to property, is not, it is conceived, afiected by the 
 new rule. 
 
 dO E. & M. 293. (X) :! C. & P. 57S. 
 
 1. Plciis averring that plaintitr first assaulted defendant, &c,, son assault 
 ilf'mesno,.:xre affirmative, and doTenlant li:i3 th3 right to open and close, McKen- 
 zie vs. :\[illi,<rani 1 Bay (S. C.) 248 ; Goldsberry vs. Stalervill, 3 Bibb. (Ky.) 34.i; 
 Downey vs. Day, -L Ind. 531. The arbitrary rule of the English judges is of no 
 force in this country, anfe p. 103, n. So under the plea of son assault, with the 
 general replication dc injuria, &c., the burden of proof is on the defendant, who 
 cannot give evidence in mitigation of damages, nor contradict the averments of 
 aggravated injuries laid in the declaration, but is bound to show that the plaint- 
 iff committed the first assault, and that whatwas done on his own^part was in 
 the necessary defense of his perton, 2 Wat. on Tress., ? 244 ; Frederick vs. Gil- 
 bert, H Pa. 454. '■ Not guilty," with son assault, &c., should be pleaded to put 
 plaintiff upon proof of every material allegation in his declaration, Cogell vs. 
 Gstt, 1 Coldw. (Temi.) 230. 
 
 2. Imprisonments are prima fa<'/'i'. trespasses, and the plaintiff need not allege 
 them to be unlawful, Gallinore vs. Ammerman, 39 Ind. 323, nor that there was 
 malice or want of probable cause. Coulter vs. Lower, 3."i Ind. 28.5 ; Miller vs. 
 Adams, 7 Lans. 13, as the arr3st itself makes a case under the law, Dietrich vs. 
 Shaw, 43 Ind. 175 ; no justification is provable under the general issue ; actual 
 authority must be pleaded and proved. Boaz vs. Tate, 43 Ind. GO ; Brown vs. 
 Chadsey, 3!) Barb. 253 ; design or intention to do official duty not enough — must 
 have actual authority, Lunhlone vs. Eamsey, 75 111. 246 ; Prell vs. McDonald, 7 
 Kans. 426 ; nor will advice of counsel amount to justification, Josselyn vs. McAl- 
 ister, 22 j\lich. 300 ; and to constitute liability manual arrest is not necessary. 
 A demonstration looking to an arrest, which, to all appearances, can only bo 
 avoided by submission, operates as effectually, if submitted to, as if the arrest 
 had been forcibly aci'umplished without such submission, Brushaben vs. Hagc- 
 man, 22 Mich. 266. There is no better settled principle in the law than the one 
 requiring the defond.ant to begin wdicn he justifies by affirmative pleas only. 
 Ante p. 48 n. 1. 
 
RIGHT TO BEGIN. 1q3 
 
 § 97. On the subject of actions of trover,(l) vide the cases of 
 Tubei-ville vs. Patrick,(?/) p. 95, and Scott vs. Lewi8,(^) p. 22 ; and 
 remark that trover is always an injury Xq proprrtji and not to the 
 person. 
 
 § 08. To pass on to certain miscellaneous proceedings. In an 
 information in the nature of &ipiu //Y//r«)i/o, calling on the defend- 
 ant to show by what autljority he exercised a certain office, to 
 which the defendant pleaded several pleas, to each of which the 
 relator replied specially, Park, J., said: "i believe the point is 
 new ; as the affirmative of the issue is on the defendant, he must 
 begin, but if on the pleadings the affirmative had been on the 
 relator, he must have begun."(«) 
 
 § S9. And in a writ of error to reverse the outlawry of the 
 plaintiff, the error assigned was, that the plaintiff in error, before 
 and at the time of awarding the exegifacins, was beyond sea; to 
 this it was pleaded that the plaintiff in error, before awarding 
 the exegi facias, &c., of his own fraud and covin, and in order to 
 defeat the defendant in error of the means, &c., and for the pur- 
 pose of avoiding said outlawry when the same should be pro- 
 nounced, went voluntarily beyond seas, &c., which was traversed 
 by the plaintiff in error and issue joined ; and per Abbott, C. J. : 
 " I think the defendant in error should begin, because the affirm- 
 
 (y) 4 C. & P.S.^7. (a) Hex vs. Yates, 1 C. & P. 3->:;, a ,lc p. 
 
 (z) 7 C & P. 3(7 6t, n.; State vd. Hunton, 28 Vt 50i. 
 
 I. It is held, no doiitit correctly, tliat all matters of defcurc in this action may 
 be given in evidence under the " general issue," except release and limitation,, 
 and that a plea of justification on the part of an ofSoer selling property under an 
 execution is unnecessary, Pemberton vs. Smith, 3 Head. (Tenu.) 48 ; but if the 
 officer attempt to justify he must set out complete state of justifying facts, 
 Young vs. Davis. DO Ala. 213; Hopkins vs. Shelton, :!7 id. 300; Vaden vs. 
 Ellis, 18 Ark. 3.')5 ; and no special plea is good unless it confesses the conversion 
 and the plaintiff's title. Coffin vs. Anderson, 4 Blackf. 39.5 ; and the character in 
 which the plaintiff sues, Bank of Auburn vs. Weed, 19 Johns. 302. The general 
 issue is recommended as the better practice, and special pleas in trover arc dis- 
 couraged, Kennedy vs. Strong, 10 Johns. 291. Indeed, it is held in some of the 
 old cases that any attempt at giving the plaintiflf color — i. <;., admitting his 
 case — must be bad, as amounting to the general issue. Latch 185 ; Cro. Eliii. ^55, 
 146 ; 1 Leon 178. 
 
154r RIGHT TO BEGIN. 
 
 ative of the question of fraud lies upon him, for the fact of^the 
 *64 plaintiff in *error having been actually abroad is admitted 
 on the record. "(6)(1) 
 
 (6) Bryan vs. Wagstaffe, 2 C. & P. J25. 
 
 1. Where it is necessary to have authority from the court to sue, the burden is 
 ■on the plaintiff to show such authority, and there is no right of action without 
 such authority, Schoficld vs. Doscher, 72 N. Y. 491. In all special cases, cases 
 reserved, special cases stated, the plaintiff holds the affirmative, and must open 
 and reply, Dera. Green vs. Stillwcll, 5 Halst. [N. J.) 60 ; Dem. Hopper vs. Dem- 
 orest, 1 Zab. (N. J.) 52,') ; so in arguments of rules to show cause,- the counsel 
 -who obtained the rule begijis and concludes, Mitchell's Motions and Rules, &c., 
 29 Pa. But if the rule be nisi with a prima facie case made against the party 
 showing cause, he is entitled to close, Boyee vs. Burchard, 21 Ga. 74 ; 1 Cow. 15. 
 
 On appeal from an award of damages made by commissioners for lands con- 
 demned by a corporation, the appeal being taken by the land-owner, he is enti- 
 tled to the opening and reply, M. & E. R. R. Co. vs. Bonnell, 5 Vr. 474 ; Mumi- 
 somet vs. Grenby, 111 Mass. 545. On a motion by the plaintiff to enter a rule 
 confirming such award and a counter motion by the land-owner to set it aside, the 
 ■plaintiff is entitled to open and reply, Gerach vs. Bayonne, Feb. 1877, decided in 
 N. J. orally. 
 
 An executor or other creditor seeking to establish his claim against the estate, 
 lias the affirmative of the issue, and is entitled to open and close the case, Ying- 
 ling vs. Hesson, IG Md. 112 ; so in a suit in garnishment interpleading claimants 
 Iiaviug the affirmative may, without error, be ordered to open and close to the 
 jury, Randolf Bank vs. Armstrong, 11 Iowa 515. 
 
 In a suit of interpleader brought by an acceptor to determine whether one who 
 held and had brought suit on his acceptance, or one who claimed to be entitled 
 to it by virtue of a transfer from the payor alleged to have been made before the 
 transfer to the holder, was entitled to payment ; held, that it was not error to 
 allow the holder to open and close, as holding the affirmative of the issue. Wills 
 vs. Stamps, 36 Tex. 48. 
 
 In a suit instituted by A. to contest the validity of a will, the court ordered a 
 formal issue to be made up without objection by A., in which the defendant B. 
 should declare that the writing was the will of the testator and the plaintiff A. 
 should plead that it was not ; and on the trial of this issue, the court ordered the 
 defendant B. to open and close, Raudebaugh vs. Shelly, 6 Oh. St. 307 ; Green vs. 
 Green, 3 O. 278. So a party who pleads undue influence only, in opposition to 
 the validity of a will, is entitled to begin. So also the party propounding the 
 last will, Hutley vs. Grimstonc, 41 L. T. R. N. S. 531 ; 9 Reporter 224. See 
 infra 1 106. 
 
BIGHT TO BEGIN. 165 
 
 § 100. We have hitheFto purposely deferred considering the 
 important actions of ejectment and replevin. With respect to 
 the former, it is now, since the disuse of real and mixed actions, 
 and the recent abolition of all except four, become almost the 
 only means of trying the title to real property, and therefore, 
 deserves our most attentive consideration. The cases on this sub- 
 ject well illustrate the position that the defendant, by admitting 
 the case of his adversary, can get for himself the right to begin> 
 The first case to which we shall refer is that of Doe d. Chamber- 
 layne vs. Lloyd.(c) Here a landlord had obtained a verdict in- 
 ejectment against his tenant, who now brought a cross one ; the 
 defendant admitted the lease, and was allowed to begin, which. 
 he did by proving acts of forfeiture. 
 
 § 101. That was the case of an ejectment between landlord 
 and tenant. The next class of cases we shall consider is, where 
 this action is brought by the heir-at-law in order to recover land' 
 which belonged to his ancestor. In ejectment it is a general prin- 
 ciple that a part}' must recover on the strength of his own title^ 
 
 (c) Peak's Ev. 5. 
 
 In every case made for argument, the party w'no i^ to open the ai-ijument must, 
 deliver to the court and opposite counsel the point he mean.? to insist on, i[iii}n, 
 vs. Newtown, 3 Johns. 542 ; Schmedt vs. United Ins. Co., 1 id. 03, 
 
 On habeas corpus the burden is ou the relator to .-how that he is illegally 
 deprived of his liberty, ex parte Bridewell, Miss. Oct., 1878 ; h K"porter 689. 
 As to quo warranlo, ritla p. 54, ante. 
 
 The demurrant has the opening and closing, Bishop vs. Day. 13 Vt. 11(1. So- 
 if a party demur and ]jleads the statute of limitations, he should g-o forward, 
 Payne vs. Hathaway, 3 id. 212. As to mandamus, the party showing- cau.se-. 
 against return begins, Ki-x vs. ,St. Pancras, 3 A. & E. 535. 
 
 And in appeals the burden of showing error in the decision in review is upon- 
 the appellant. He must show affirmatively that the law applicable to his case is. 
 in his favor and requires a reversal. He cannot be aided ))y intenJemeuts or 
 inferences, Herriter vs. Porter, 23 Cal. 385 ; Tood vs. Winats. 36 id. 12!) : r>c(we- 
 vs. Beck, 9 Jnd. 238 ; Hughes vs. State, 4 Iowa 554; St* Louis, kc. Ins. ("o. vs.. 
 Cohen, 29 Mo. 421 ; < ;rant vs. Morse, 22 X. Y. 323 ; Mead vs. Bunn, 32 id. 275 ; 
 and the rule applies to Chanci-ry proceedings us well as law, (Jarner vs. Pomroy. 
 11 Iowa 149. If it appear liy the judgment rcrnrdthat there was no trial by the 
 jury below, and that no eviden(-e was given to the court, it will be presumed, onr 
 appeal, that the cause was heard on the pleadings alone. Belt vs. Davis, 1 Cal. 134. 
 
156 UIOHT TO BEGIN. 
 
 and not on the weakness of his adversary's, and consequently 
 when an ejectment is brought by a person as heir at-law, he iiiust 
 establish, tirst, his relationship to the party through whom be 
 claims ; and, secondly, that that party was the person last actu- 
 ally seized of the freehold and inheritance.(r/) Now, in the case 
 of Fenn d. Wright vs. Johnson,(c) the defendant expressed him- 
 self willing to admit the lessor of the plaintiff to be the heir-at- 
 law, but set up a new case for himself, and was then allowed by 
 Le Blanc, J., to begin. The same case has been previously tried 
 *65 *before Gibbs, J., who ruled directly r-ontra ; but it was 
 tried a third time (summer assizes, 1813) before Wood, B., who 
 took the same view of the case as Le Blanc, and allowed defend- 
 ant to begin. 
 
 § 102.. The admission, however, of the heirship of the lessor 
 of the plaintiff must be a direct and not a qualified one. Thus 
 in Doe d. Warren vs. Bray,(/') the lessor of the plaintiff" claimed 
 as hcir-at law of II. B., the person last seized. A. B., one of the 
 defendants, was son of T. B., brother of li. B., and he was 
 undoubtedly the heir at-law to II. B. if he were legitimate. 
 Defendant offered to admit that if the defendant A. B. were not 
 legitimate, the lessor of the plaintiff was heir-at law of the per- 
 son last seized, and thej' then claimed the right to begin, on the 
 ground that after tliat admission, the legitimacy' of A. B. was the 
 only question, and the affirmative lay on them. But Vaugban, 
 B., said " that the plaintiff' must begin. Generally the party on' 
 whom the affirmative lies has that right ; the fallacy is in the appli- 
 cafio'i of that rule to this particular case. The question is, 
 whether the lessor of the plaintiff" is heir-in-law to IT. B. ; the 
 affirmative of the issue is on the plaintiff'; it m-jy turn out that 
 the question turns entirely on the legitimacy of A. B., but still 
 the issue is not on that fact, but on the heirship of the lessor of 
 the plaintiff. In th"e case cited the admission was of the heirship 
 or of the validity of a prior will ; and then the cause turned 
 entirely on a subsequent question, the validity of a will or codi- 
 cil, of which the defendant was to piove the affirmative; here 
 
 ((J!) 3 PhU. Ev. S32. (e) Acl. on Ej. 2S6. (/) M. & M. ;66. 
 
RIGHT TO BEGIN. 157 
 
 the iidmission does not go so far, and 1 think it docs not give the 
 defendant a right to begin." 
 
 § 103. In a sobsequent case, however, it was decided (and 
 probably that was the view taken by Gibbs, J., in Fenn d. Wright 
 *66 vs. John8on,)(^) that the admitting the heirship at law *of 
 the lessor of the plaintifi" is not a sufHcient admission to entitle 
 the defendant to begin, unless the fact that his ancestor died seized 
 to be admitted also. In Doe d. Tucker vs. Tucker,(/)) where the 
 lessor ot the plaintiff claimed as heir-at-law of J. T., defendant 
 claimed under a conveyance made by J. T., and, offering to admit 
 the lessor's heirship, claimed the right to begin. Against this 
 the plaintiff contended that sufficient had not been admitted ; 
 that a material part of tbe plaintiff's case — viz., his ancestor's 
 dying seized — was still necessary to be proved by him ; sed per 
 Ballond, B. : '■ Unless the defendant admits the whole case of the 
 plaintifl, the plaintiff must begin," which he accordingly did. 
 
 § 104. The next case is that of Doe d. Woollaston vs. Barnes.(2) 
 One J. C. had died in [833 seized of some property. After his 
 death S. E., his sister and heiress-at-law, took possession of it, 
 and, having made a will devising her real property, had died 
 also. This was an action of ejectment, containing demises from 
 the heir-at-law of J. C. and S. E., and also from the devisees of 
 S. E. to I'ecover this property from the defendant, who claimed 
 under a will made by J. C. The defendant proposed to admit 
 that J. C. died seized ; that S. E. was his heiress, and liad posses- 
 sion of the property from the time of his death ; that the plaintiff 
 was heir-at-law of J. C. and S. 1!., and that the plaintiff was 
 entitled to the property unless he proved the will of J. 0. ; and 
 on these admissions claimed the right to begin ; and argued that 
 the proper mode of trying that right was by considering the case 
 as it would be, supposing the parties had deduced their titles in 
 the pleadings; in that case the averment by the defendant, in 
 answer to the plaintiff's title, would have been that J. C. had 
 made the will in question, and the plaintiff must have traversed 
 *67 that, on which *the affirmative of the issue would have 
 
 ig) Ad. on Ej. '250. (ft) M. & M. 5.;n, (i) 1 M. & U. 388. 
 
158 RIGHT TO BEGIN. 
 
 been ou the defendant, as it here was ; in fact, the only question 
 being if J. C. had made a will or not. The plaintiff, on the con- 
 trary, argued, that the defendant was bound to admit the whole 
 of the plaintiff's case, and cited Doe d. Tucker vs. Tucker ;(/;) 
 that here it was part of the plaintiff's case that S. R. died seized, 
 which would not be if J. C. had made the will in question ; that 
 the defendant might meet the plaintiff's case by some subsequent 
 fact defeating the case, but he must admit all that the plaintiff 
 was bound to prove in order to make out his case. Upon which 
 Lord Denman said : " I think that on principle the defendant 
 admits enough to entitle him to begin. Here the defendant 
 admits all that the plaintiff requires to entitle him to a verdict, 
 except the single fact of the descent to S. R. ; that he proposes, 
 to defeat by a will which he will have to prove, and on that will 
 is the single issue in the case. If, instead of the, general form 
 and statement in ejectment, the titles had been deduced in the 
 pleadings, the issue must have been upon the will, and I think 
 that is a correct mode of trying the question." 
 
 § 105. The case of Doe d. Smith, (Z) confirms the doctrine laid 
 down in the last case, and goes a step farther, namely, that the 
 plaintiff' cannot, by taking the assignment of an outstanding 
 term, defeat the right whicTi the defendant has to admit the prime 
 facie case oi his ad versar}^ and begin. There the plaintiff claimed 
 as heir-at-law of Mrs. Smith ; defendant said that he admitted 
 that fact, and also that she died seized but claimed himself under 
 a will made by her. The plaintiff said that as to part of the 
 property in question, he claimed as assignee of an outstanding* 
 term, the assignment of which he was I'cady to prove, as forming- 
 the title to that part of the property independent of the will.. 
 *68 Doe d. *Tucker vs. TQcker,()/i) and Doe d. WoUaston vs. 
 Barnes,()i) were cited ; and the defendant refused to admit the 
 assignment. Gurney, B.,then consulted Patterson, J., and said : 
 "Both of us are of opinion that the defendant is entitled ta 
 begin. The real question in di8])Ute is the validity of this wilL 
 The mischief would be extremel}' great, if a party, by merely 
 
 {>;) M. & M. ma, § IO;i, supra (I, 1 Jl. & It, 478. (J7!) tt. & JI. .WO (n) M. & I!. 38B_ 
 
RIGHT TO BEGIN. ISO" 
 
 getting an outstanding term, should obtain an advantage to wliicb 
 he is not really entitled. "(1) 
 
 § 106. The case of Doe d. Corbett vs. Corbett,(o) is one of a 
 different nature from those we have been considering, although 
 
 (o) 3 Camp. 368. 
 1. The bui-deu is on the plaintiff in the following cases : To induce his title 
 from a common source, Miller vs. Hardin, 64 Mo. 545 ; and neither can dispute- 
 the title of such person, Ames vs. Beckley, 48 Vt. 395 ; but a presumptive title, 
 or title subject to some formal defects, maybe sufficient, Johnson vs. Jackson, "70 
 Pa. St. 164 ; Campbell vs. Fletcher, 37 Md. 430 ; though it must be legal contra- 
 distinguished to equitable, Mulford vs. Tunis, 35 N. J. L. 256. 
 
 Proof of legal title in the plaintiff will sustain his action of ejectment, and 
 throw on the defendant relying on the statute of limitations the burden of prov- 
 ing adverse possession, Halsey vs. Wood, 55 Mo. 252 ; and the converse obtains 
 where plaintiff claims by adverse possession and the defendant title by deed,- 
 Barr vs. Galloway, I McLean 476 ; so where the plaintiff seeks to recover on the- 
 ground that the defendant has not performed his covenants in neglecting to pay 
 the notes given for the purchase of the land in controversy — to show such default, 
 Roland vs. Fischer, 30 111. 224 ; and in all cases the party alleging a breach ol" 
 covenant of title must prove not only the making of the covenants, but also the- 
 breach thereof, and has the burden of proof on both branches, Peck vs. Iloughta- 
 ling, 35 Mich. 127. 
 
 He has the burden to show paramount title, and until that is done the dcfeud-^ 
 ant is not reqirired to exhibit title to defeat a recovery, Holbrook vs. Nichols, 3C 
 111. 161 ; and if a judgment debtor, under a sheriff's sale, refuses to give up the- 
 possession of the land, plaintiff has the burden of showing the judgment, the 
 fi. fa. and the sale of the land, which may be done either by a deed from- 
 the sheriff or a return of the fi. fa., Tenwiek vs. Floyd, 1 H. & J. (Md.) 172 ;. 
 Johnson vs. Hasbrouck, 12 Johns. 213; Den vs. Morse, 12 N. J. L. 331; and,, 
 generally, when the plea is " not guilty," to establish ;i, good title, but he is not 
 obliged to pursue any particular order of proof in tracing his title, Laughe's 
 lessee vs. Jones, 20 Md. 472 ; but is bound to prove the land sued for is within 
 the boundaries of a confirmation, Papiu vs. Allen, 33 Mo. 260. 
 
 Ejectment will not lie against the widow at the suit of the heir. lie must pro- 
 ceed under the partition acts to have her share ascertained and secured to her,. 
 Gronley vs. Kinley, 66 Pa. 270 ; Brown vs. Colson, 41 Ga. 42. 
 
 The burden has been held to be on the defendant in the following (-ases r. 
 Where the plaintiff claims title under a deed from A., and the defendant produced 
 subsequent deeds of the same lands from a person of the same name, under which 
 he claims, to show that the grantor in the first deed was not the owner of the- 
 
160 RIGHT TO BEGIN. 
 
 it Avas governed b^^ and strongly supports the satue general prin- 
 ciple as they, namely, that the defendant, by admitting the prima 
 facie case of the plaintitf, can always get to himself the right to 
 begin. In that case the lessor of the plaintifi" (instead of as heir- 
 at-law) claimed under a will made by Sir R. C. in 1764, and the 
 defendant, under a codicil to the same will made in 1771, which 
 was impeached by the plaintiff", on the ground that the testator 
 at the time of its execution was in his dotage and under undue 
 influence. The defendant admitted the title of the plaintiff" 
 under the will, and claimed the right to begin ; and per Bay ley, 
 J. : " I think the devisee named in the codicil stands in the same 
 relation to the devisee named in the will, as the devisee in the 
 will does to the heir-at-law. Between the two latter, the ques- 
 tion turns on the validity of the will ;" and defendant began.(l) 
 § 107. We next proceed to consider the action of replevin.(2) 
 In Bulforde vs. Cooke,(j;) which was an action of this descrip- 
 
 (p) Peak's Et. 5. 
 
 1. The one who first denies the validity of a testamentary paper as a testa- 
 mentary paper, and asks for issues to determine the question, is entitled to open 
 and close the case before a jury, Edilin vs. Edilin, C Md. 288 ; Townshend vs. 
 Townshend, 7 Gill. 10; Parrell vs. Brennan, 32 Mo. 328 ; McClintock, 32 id. 411 ; 
 Ya.n Cleave vs. Beam, 2 Dana 155. See ante I 98, n. 
 
 2. See ante p. 27 and I 72. Upon a plea of property in the defendant the 
 burden of proof is thrown upon the plaintiff, Williamson vs. Eingold, 4 Cr. C. C. 
 39; Pennington vs. Chandler, 5 Har. (Del.) 394; Anderson vs. Talcotf, 6 111. 
 365 ; Turner vs. Cool, 23 Ind. 56 ; Henderson vs. Casteel, 3 Cr. C. C. 365 ; so 
 under this issue defendant may show any legal title to the property, no matter 
 how derived, O'Conner vs. Union Line, &c., Co., 31 111. 230, and as the plaintiff 
 cannot recover unless he shows title in himself, the defendant may defeat the 
 
 premises granted, Jackson vs. Cody, 9 Cow. 140 ; Doe vs. Eoe, 6a. Dec, part 1, 
 140 ; so where he relies on a deed claimed to have been given to him by the 
 plaintiff, but lost, he must not only prove the existence of the deed, but its con- 
 tents, Sais vs. Sais, 49 Cal. 264; see Ernig vs. Delhi, 76 Pa. 350 ; and where the 
 defendants claim the land under proceedings in partition, under a, bill in chan- 
 cery, to produce the entire record of the chancery proceedings, or, at least, all 
 those parts which related to or might affect the interest of the plaintiffs, Piatt 
 vs. Stewart, 10 Mich. 260. 
 
RIGHT TO BEGIN. 161 
 
 tioii, the defendant, without tlie u-eneral issue, jileiuled lilieriim 
 feneh)C))fihi) .• and per Le Bhinc, J.: "He was entitled to begin.'' 
 Ill Colstone vs. Hiscolbs,((7) which was an actiou of replevin 
 brought for a horse, the defendant pleaded that the horse was the 
 *69 property of one S. H., and *not of the plaintiflf, as the dec- 
 laration supposed ; to which the plaintifi" replied that the horse 
 was not the property of S. 11., but of the plaintiff, on which issue 
 
 (ry) 1 M. & K. 3ul. 
 
 action by showing title in a third person, without iMniir.'rting- hini.-<eir with thai 
 per.-ion, Robinson vs. Calloway, -t Ark. 94; Tomlin.^on vs. Collins, 20 (.'niiii. j(i4 ; 
 Simcoke vs. Frederick, 1 Ind. .54; Howland v.s. Puller, H Minn. fiO ; Redinmi vs. 
 Hendrickson, 1 Sandf. 32 ; Lester vs. McDowell, 18 Pa. 1)1 ; so the (kfendant 
 may show that he and the plaintiff were joint owners, in order to rebut the e.xrlu- 
 sive right and possession of the plaintiff. Chambers vs. Hunt, 3 Ilarr. (X. J.) 
 339, affirmed 1 Zab. 020. Hornblower, .J., says. 3 Ilari-. i X. .T.) 313 : " Hence it 
 is that several persons, having ^■/'yjiirdfc and iliKf/ncf intercuts in the property, 
 cannot join in replevin, though joint tenants, tenants in coniHion and coparceners 
 may." And for the same reason it is a good plea in aliatonient or in bar to say 
 the property is in the plaintiff and defendant or in the plaiutilf and a stranger ; 
 or, if there be two or more plaintiffs, that it is in one of them ; but each of these 
 pleas must specially traverse by ct von or absqiw lioc, that the property is in the 
 plaintiff, in manner and form, &<:., Co. Lift. li.^-C ; Cro. Eliz. 350 ; Bull. X. P. 
 53. and cases above cited. In Harrison vs. Mcintosh, ] .Tohns. 380, Kent, C. J., 
 says : "A plea of property in a stranger is a good plea in abatement or bar, and 
 ■entitles the defendant to a return without avowry," 2 Ijcv. 92 ; 1 Salk. 94. In 
 Hart vs. Fitzgerald, 2 Mass. 509, Parsons, C. J., says replevin is founded in a 
 ff(>iieral or special property in the plaintiff, and all the part owners must join in 
 the action, The Prc-ide. ic, vs. Wtorrs, Mass. 425; Gardiner vs. Dutch, 9 id. 
 427 ; and by .Justice Storey, in 4 Mason's U. S. C. C. 515, 538 : "The plea of 
 non cKpit and non chtinet concedes the right of property to be in the plaintiff', 
 and only puts in issue the caption and detention, Vanneman vs. Bradley, 69 111. 
 299 ; but non fjefinrt admits wrfingfnl taking, allegeil. Simmons vs. Jenkins, 79 
 Ilf. 479." 
 
 So the want of an affirmative allegation of ownership Ijy the plaintiff' is fatal 
 in arrest, Schofield vs. Whitlegge, 33 X'". Y. Supcrioi- Ct. 81 ; he must take the 
 burden and recover on the strength of his own title s(dely. Eeynolds vs. McCor- 
 raick, 02 111. 412 ; and the action will be barred by any pi'oof that the plaintiff, 
 when he began his suit, had no right to the po;-ie^sion. Clark vs. West, 23 
 Mich. 242. 
 
162 RIGHT TO BEGIN. 
 
 was joined. The plaintiff claimed the right to begin, and argued 
 that the plea was only a denial of the allegation that the horse 
 was the property of the plaintiff"; the defendant, on the other 
 hand, said, that in order to defeat the action he was bound to do 
 more, viz., to prove that the horse was the property of S. H. 
 Alderson, B., (after consulting with Patterson, J., who agreed 
 with him,) called on the defendant to begin. (2) 
 
 § 108. It has been already mentioned, that in general, where 
 there are several issues joined between the parties, the proof of 
 any one of them lying on the plaintiff gives him a right to begin, 
 and that attempts had been made, though without success, to dis- 
 
 2. This was error; the burden was on the plaintiff, Robinson vs. Colloway, i 
 Ark. 94 ; Tomlinson vs. Collins, 20 Conn. 364 ; Simcoke vs. Frederick, 1 Ind. 54 ;. 
 Howland vs. Fuller, R Minn. ',59 ; Redman vs. Hendrickson, 1 Sandf. 32 ; Lester 
 vs. McDowell, 18 Pu. 91 ; Hunt vs. Chambers, 3 Harr. (N. .J.) — ; Harwood vs. 
 Smithurst, 29 X. J. L. 195 ; Kennedy vs. Clayton, 29 Ark. 270. But where the 
 defendant pleaded in avoidance a lien on the goods — held, that the right of the 
 plaintiff was .thereby admitted, unless the defendant made out his plea, and that, 
 therefore, the burden was on him, and he should open and close. The proof of 
 value by the plaintiff is incidental, and docs not affect this, McLees vs. Felt, 11 
 Ind. 21 K. 
 
 A partner having the right of possession of the whole partnership property, as 
 such, may maintain this action, Bostio vs. Britlain, 15 Ark. 4h2 ; Smith vs. 
 Wood, 31 Md. 293. "Where the plaintiff's logs had been mixed with those of 
 defendant, he is entitled to recover a quantity of logs out of the common mass 
 equal to his own, Eklrid vs. Oconto Co., 33 Wis. 133; Stearns vs. Raymond, 2G 
 AVis. 74. 
 
 Damages in a replevin suit can only be recovered where the detention is wrong- 
 ful ; but the detention of property acquired at a judicial sale is not wrongful,, 
 even against the true owner, unless after proper notice and demand, Arthur vs. 
 Wallace. 8 Kans. 267. 
 
 The question of value is not in issue, Thonus vs. Spafford, 4G Me. 408, aiid 
 damages on replevi]i bond must be assessed upon a writ of inquiry, Peacock vs. 
 Haney, 37 N. J. I.. 179 ; jNIcLecs vs. Felt, 11 Ind. 218. 
 
 In replevin the' defendant avowed the taking in a certain lot, and alleged that 
 it was his soil and freehold. The plaintiff replied that the soil and freehold was 
 in A., and tendered an issue Ihereon. which the defendant joined. Held, that 
 the plaintiff had the right to open and (dose, Thurston vs. Kennet, 22 X. H. 151. 
 
RIGHT TO BEGIN. 163 
 
 tinguish the action of replevin in this respect from the other 
 forms. In Curtis et al. vs. Wheeler et al.,(r) the plaintiffs having- 
 declared as assignees of one Collison a bankrupt, the defendant 
 Wheeler avowed, and the others made cognizance for rent in 
 arrear, on a demise made by Wheeler to the bankrupt, and there 
 virere several avowries and cognizances stating the tenancy in 
 different ways ; to each of these the plaintiff pleaded in bar. 1. 
 Non tenuit. 2. Riens in arrear. 3. A special plea, that the bank- 
 rupt had let certain other rooms to the defendant at £42 a year, 
 and that it had been agreed between them that the £42 rent 
 should be set off against the other, and averred that a greater 
 sum was due to the bankrupts at the time of the distress than 
 was due by the bankrupt to Wheeler. The replication to this 
 plea in bar traversed the agreement to set off one rent against the 
 other, and also denied that more rent was due from Wheeler than 
 from the bankrupt. The plaintiff claimed the right to begin, 
 as the allegation that one rent was to have been set off against 
 *70 the other was *an affirmative issue which la}^ on him. The 
 defendant said that in replevin the plaintiff had no such privi- 
 lege, as both parties were equally actors, and that all matters stated 
 in the third plea could be given in evidence under the second 
 issue of reins in arrear. But Lord Tenterden said " that he was 
 not sure that the matter of that plea could be given in evidence 
 under reins in arrear ; that he was afraid to make distinction in 
 actions, and if there was any affirmative on the plaintiff he was 
 ■entitled to begin, and that here there was one on liim."(l) 
 
 I 109. Again in the case of Williams, administrator of Wil- 
 liams vs. Thomas,(.s) the defendant made six cognizances for rent 
 in arrear. The first stated that the rent was £200 a year and 
 three tons of coals per mouth ; the second, that the rent was 
 £200 a year and lOd. per ton on all coal raised from the premi- 
 ses, but that the rent of £200 a year should be deducted from 
 the lOd. per ton and three tons of coals monthly ; the other three 
 
 (r) 4 C. & P. 198 ! M. & M. 493. (s) 4 C. & P. 234. 
 
 1. Hungorford vs. Barr, 4 Cr. C. C. 349 ; Greei- vs. Nourse, id. ')'>'. 
 
164 RIGHT TO BEGIN. 
 
 cognizances varied slightly from the second. To the first cogni- 
 zance the plaintiff" pleaded — 1. That the £200 was not in arrear, 
 and that the coal was never demanded. 2. That neither the 
 £200 nor the coals were in arrear, and to each of the five others 
 he pleaded separatel3'. 1. Non tenuit. 1. Riens in arrear. 3. 
 That the lOd. per ton never exceeded £200 a year. He then 
 pleaded, as an eighteenth plea, which went to the last five cogni- 
 zances, that all the demises in those cognizances were one and the 
 same; that an agreement had been entered into between the 
 intestate and J. M., the person to whom defendant was bailiff', 
 and that the intestate was induced by J. M. to enter into another 
 agreement (which was set out) ; and that each of the demises 
 mentioned in the last five cognizances was the demise in the sec- 
 ond agreement, which, before any rent became due, was aban- 
 doned by mutual consent. The nineteenth plea was similar to 
 *71 the ^eighteenth, except that it averred that the second 
 agreement had been obtained by fraud and misrepresentation, 
 instead of saying that it was abandoned. The replication to the 
 eighteenth plea traversed the abandonment, and that to the nine- 
 teenth, the fraud, &c. On these pleadings the defendant claimed 
 the right to begin, and contended that although the affirmative 
 of the issue taken on the eighteenth and nineteenth pleas was, in 
 point of form, on the plaintiff", yet, as those pleas amounted in 
 substance to no more than non tenuit, it lay on the defendant ta 
 prove the tenancy. Sed per BoUaurd, B. :• " These pleas do 
 amount very nearly to non tenuit ; yet, as in point of form the 
 affirmative is on the plaintiff", I think he ought to begin." And, 
 lastlj", in the case of James vs. Salter,(^) the defendant avowed, 
 as a distress for an annuity due under the will of J. S., to which 
 the plaintiff" pleaded in bar, that the annuity devised by will was 
 first charged on certain leasehold lands of which the testator died 
 possessed, and in deficiency of same, then on the premises in 
 question ; the replication to which traversed the allegation that 
 the testator died possessed of leasehold lands. There were, it 
 seems, also other pleas in which the issue lay on the defendant ; 
 
 (I) I M. & U. 501. 
 
RIGHT TO BEGIN. 165 
 
 plaintift" claimed the right to begin, as the issue on the first plea 
 was on him. To this the defendant's counsel argued that the 
 defendant in replevin had the right to begin, as he was in sub- 
 stance the plaintiflf, and the issue lying on him gave him the 
 right. Sed per Gurney, B. : "The sume rule prevails in replevin 
 as in other actions; anyone issue lying on the plaintiff gives 
 him a right to begin." Manning, americus Cur. cited a case not 
 reporred, Eose vs. Brown, in which Gibbs, C. J., held that in 
 replevin, as in other actions, one issue lying on the plaintiff gave 
 him a right to begin. 
 
 § 110. The case of Williams vs. Thomas (») affords an excellent 
 *72 ^illustration of the general principle, that one issue lying 
 on the plaintiff" gives him a right to begin ; here there were nine- 
 teen issues joined, the onus of proving seroitren of which lay on. 
 the defendant, yet, as the onus of proving the two others lay ou 
 the plaintiff, it was held that he had a general right to bea^in. 
 
 § 111. It is sometimes said that the decision of the question 
 as to who has a right to begin is a matter solely for the consider- 
 ation and discretion of the judge at nisi ])riu->-,'l) and that the 
 court in banc Avill never set aside a verdict, or take any step to 
 rectify any error into which he may have fallen in this respect, 
 unless, perhaps, such error was induced by malpractice or sur- 
 prise. There are some expressions in our reports which seem 
 strongly to countenance this doctrine. In the case of Hare vs. 
 Munn,c./) Lord Tenderden actually reversed the order of proceed- 
 ings, as he said he considered, on hearing the statement of the 
 evidence about to be offered, that it would be more convenient to 
 take the plaintiff"'s evidence first; and in another case. Fowler 
 vs. Coster, fy) the very next day, decided otherwise, saying that 
 in Hare vs. Munn he had not intended to lay down any general 
 rule. Also in the case Burrel vs. Nicholson,(z) where the court 
 
 («) 4 0. & P.234. (a:; M. & M. 241. (2/) lb. . 3 C. & P. 436. (z) 6 C. & P. 202; 1 M. & R. 304. 
 1. The riglit to open and reply is not stricfi juris a primary ])roposition, Imt u 
 consequential one, depending upon the burden of proof upon the propositions 
 strictly put in is=ue, Smith v.'i. Sergeant, ante p. 90 ; Penhryn Slate Co. vs. Meyer, 
 De GroT v?. Carmichas', ante p. 88, and when the ruling upon the pleadings is 
 
166 RIGHT TO BEGIN. 
 
 was moved for a new trial, on the ground that according to the 
 form of the pleadings and practice of the court, the plaintiff 
 instead of defendant should have been called on to begin ; the 
 oourt took time to consider whether they would grant a rule to 
 show cause, and, on a subsequent day, Lord Chief Justice Den- 
 man said " That the court doubted whether, under any circum- 
 ■stances, a new trial ought to be granted, on the ground that the 
 j udge at 7iisi prius had come to an incorrect decision on a point 
 ■of this kind. It seemed rather a matter of practice and regula- 
 *73 tion for the presiding judge to exercise *his discretion upon, 
 
 erroueous in casting tlie burden on the wrong party, even when no evidence be 
 offered, it will be reversed, Dwelle vs. Eoath, 29 Ga. 733 ; N. Y. Dry Dock Co. 
 vs. M'Intosh, 5 Hill 290; and the court is bound to instruct as to the presump- 
 tion in the absence of proof, Potter vs. Ohadsey, 16 Abb. Pr. 146 ; any ruling at 
 the trial which improperly transfers the burden of proof from one party to the 
 other is reversable error, Millard vs. Thorn, 56 N. Y. 405 ; Johnson vs. Collins, 
 3 7 Ala. 318 ; Nickerson et als. vs. Eugar ct als., 76 N. Y. 280 ; ante p. 16 ,■ 
 Chambers vs. Hunt, 3 Harr. (N. J.) 329 ; affirmed in 1 Zab. 620. 
 
 To the credit of our jurisprudence few cases have occurred presenting the 
 absurdity, that the court first decided the burden or affirmative of the issue was 
 ■on the defendant; and, secondly, ordered the plaintiff to open and close ; and, 
 thirdly, upon review adjudged it no error, Church, C. J., in Heineman vs. Heard, 
 62 N. Y. 456, says : " The question of which party has the affirmative of an issue 
 is in many cases very material, as the case might be one in which the jury might 
 hesitate in finding that the plaintiff had established the charge, and yet when 
 they would not find that it had been satisfactorily answered." E. Darwin Smith, 
 J., in Huntington vs. Conkey, 33 Barb. 220, says: "The right to begin and the 
 right to reply, in trials at the Circuit, is unquestionably of much practical con- 
 sequence. The privilege of making the opening statement to the jury, and of 
 making the closing argument upon the evidence, is an advantage not unappreci- 
 ated or inconsiderately sought and claimed by the counsel for litigating parties 
 in courts of justice. In many cases it is of the highest imprortance, and particu- 
 larly so where the facts are complicated and there is contrariety in the evidence, 
 or it is nicely balanced and slight circumstances are likely to turn the scale. In 
 cases where there is a great preponderance in the testimony on one side it may be, 
 quite immaterial, bnt there is obviously a right rule on the suljject that should 
 be asserted and maintained. * * * But it seems to me that it is a mistake to 
 regard the question as purely one of practice. It is a question of right and of 
 
RIGHT TO BEGIN. 167 
 
 than one which the court in banc were to determine as a matter 
 of law. But that, at all events, the court was of opinion that in 
 the principal case the judge had rightly admitted the defendant 
 to begin ;" and refused the rule on that ground. And in the case 
 ■of Doe d. Pile vs. Wilson,(«) when Gloodtitle d. Revett vs. Bra- 
 ham was cited as being a case in banc on that point, Deuman, C. 
 J., said: "I do not much rely on any decision in banc on such 
 point [N. B. — Lt was not a case in banc after all, but a trial at 
 bar], because I believe it is always said in banc that these points 
 of practice are for the decision of the judge at nislvrius ; and I 
 think that the judges in banc would be very slow to interfere 
 with the ruling on such a point unless it was a surprise." And 
 in Scott vs. Lewis, (6) where a r^uestion was raise;! relative to the 
 right to begin, (vide this case supra chap. 1, p. 22,) Coleridge, J., 
 said : " Questions of this sort must be decided more upon what 
 justice to the parties requires, than upon an)' strict rule of prac- 
 tice."(l) 
 
 (a) 1 M.&R. 323, (6) 7 C. & P. :U7. 
 
 1. Ill Pennsylvania, in Richards vs. Nixon, 2(1 I'a. 23, the (lurslion was i-aiseil, 
 Init the court held that the decision on the tvial was correct ; but Jndge Black 
 
 lau-. Wherever the rule is stated, in almost all the reported cases, it is stated 
 as a matter of rir/lif." A new trial was granted on the authority of Davis vs. 
 Mason, 4 Pick. 158 ; Brooks vs, Barrett, 7 ib, 'li ; Eohun vs, lliinson, 11 Cash, 
 44; 7 id. 563 ; 8 Mete. G4; Caskey vs, Lewis, 1.") Ky. ; Harris vs, Kent, 11 Ind. 
 12C; Benham vs. News, 2 Cal. 4(18; Singleton vs, "Willets, 1 Xott, & M, 355 ; 
 Johnson vs. Widner, Dud, (S, C) 325; Mercer vs, Whall, f. Ad,,<t El, (X. H.) 
 447 ; Doe d. Bather vs, Brayne, 5 Man, Gr. & S. 055 ; Geadi vs, Ingorsall, 14 
 Mees, & W. 95 ; Ashley vs. Bates, 15 id, 58!), 
 
 But the learned court overlooked the New IIani]ishire (■a>es — such as Judge of 
 Probate vs. Stone, 44 X, H, 593 ; Toppan vs, Jenncss, 21 id, 232 : Belknap vs, 
 Wendell, id, 175 ; Thurston vs, Kennett, 22 id, 157 ; Buzzell vs, Snell, 25 id. 478 ; 
 Ohesley vs. Ohesley, 37 id, 229 ; Bump vs, Smith, 11 id, 48 ; Heavy vs. Dearborn, 19 
 id. 351. The cases holding it error to deny the right to open and reply 1 o the party 
 holding the affirmative of the issue since the ul)i)ve decision, are Millard vs. 
 Thorn, 50 N. Y. 402 ; Elwell vs. Chamberlain, 31 N, Y, G14 ; Lindsley vs. The 
 European Pot. Co. 3 Lans. 170; Colwell vs, Browor, 75 111,510; Bertraud vs. 
 Taylor, 32 Ark, 470 ; Tobin vs, Jenkins, 2i) Ark. 159, and cases pp, 88, f-iO, 
 
 12 
 
168 RIGHT TO BEGIN. 
 
 §112. Notwithstanding all this, it may very well be ques- 
 tioned whether the position can be suppoi'ted to its full extent, 
 that the court in banc will never, except in the case of surprise, 
 exercise a remedial power over the decisions of a judge at nisi 
 privs, relative to the right to begin. That the judge has a dis- 
 cretionary power necessarily vested in him to a great extent, the 
 case of Hare vs. Munn,(c) and that of Crerar vs. Sodo,(c?) (in the 
 next chapter) distinctly show, and that the court in bane would, 
 most properly, be very slow indeed in disturbing a verdict, on 
 the ground of any error in this respect, must be at once conceded > 
 But the assertion taken to its full extent is i-ather a formidable 
 *74 one. Cases may occur, nay, actually *have occurred, [vide 
 that of Edwards vs. Jones, siqyra § 32, ante,) where the errone- 
 ously calling on a plaintiff or defendant to begin, Avhen the real 
 onus probandi lay with his adversary, would tend to the defeat 
 of all justice as completely as the improper I'ejection or admis- 
 sion of evidence, or the misdirecting a jury could possibly do;, 
 and when it is considered that the subject is one of some diffi- 
 culty, and on which even very able judges have frequently come 
 to erroneous conclusions, it seems too much, in the absence of a 
 positive judicial decision to that effect, to assert that the court in 
 banc will never, under such circumstances, interpose its authority. 
 
 § 113. There is an expression of Lord Tenderden's, to be found 
 in the case of Lacon vs. IIiggins,(e) viz., "that the plaintiff in 
 that case was entitled to begin, if he elected to do so," which would 
 seem to imply that a party might waive his right, and thus throw 
 
 (c) 1 M. & M. 211, id) 3 C. & P. 10: M, & M. 83. (e) 3 Stark. 178. 
 
 also said : " But if the decision had been wrong in this respect, we are not 
 inclined to believe that any judgment ought to be reversed for such an error." 
 This is a mere obiter, not a decision on the question, for none was called for. So 
 of Grier's view of the question in Day vs. Wadsworth et als., 13 How. 370, as 
 also that of Justice Strong in Hall et als. vs. Weare, 2 Otto 732, Rosekrans, J., 
 in Pry vs. Bennett, 28 N. Y. 328, and the case of Booth vs. Millus, 15 Mees. & 
 Wels. 669, cited for the dicta in Fry vs. Bennett, where the plaintiff had the 
 affirmative of malice. We wait the action of the court in a case presenting the 
 error explicitly. Wo are not satisfied with dicta upon cases presenting no erroi". 
 
RIGHT TO BEGIN. 169 
 
 t 
 
 the onus of beginning on his adversary. Such is not, however, 
 the fact; no such position is recognized in practice, as, if it were, 
 manifest injustice and inconvenience would result, as appears 
 from the observations ah-eady made relative to the discretionary 
 power being vested in either of the litigant parties.'/) 
 
 Section 2. 
 
 Of flic Rirjlit to Bi'ijiii in Criminiil Cases. 
 
 % 114. In these cases, the practice relative to the right to begin 
 is considerably influenced and simplified by tioo circumstances ; 
 first, that in them no damages are ever demanded ; and, secondly, 
 *7o that there is little or no^speciaFpleading, especially *in cases 
 of treason or felony. It is, however, governed by the same gen- 
 eral rule as the practice in civil cases, viz., that the party on 
 whom the onus probandi lies has a right to begin. (1) When, 
 
 (/) See cases ante p. 88, n. 
 
 1. If a plea in abatement be demurred to, the State begins on the demiirrer, 
 State vs. Rockafellow, I Halst. (N. J.) 334, and if the demurrer be overruled the 
 judgment of the court should be that the prosecution abate, Rawles vs. State, 16 
 Hiss. .599. In criminal cases a defendant cannot plead a special plea in addition 
 to a plea of not guilty, Reg. vs. Straham, &c., 7 Cox. C. C. 85 ; Reg. vs. Skcen, 
 s Cox. C. C. .143; 5 Jur. (X. S.) 1.51 ; the special plea of autrefois await or 
 convict must be disposed of first, Henry vs. State, 33 Ala. 389 ; Nonem:;\er vs. 
 State, 34 Ala. 211.; Davis vs. State, 42 Tex. 294. 
 
 An indictment clearly bad in law the court ougljt, on their own motion, to 
 refuse to try. Defendant's counsel, not in a formal argument, but by suggestion 
 amicus curio-, should call the attention of the court to the fact, Rex. vs. Trc- 
 main, 5 D. & R. 413 ; 3 B. & C. 761 : Rex. vs. Hipper, R. & M. 210 ; Rex. vs. 
 Abram, 1 M. & Rob. 7 ; and whether the court will entertain a motion to quash 
 is discretionary. The actual rights of the prisoner can only be obtained by some 
 kind of plea — abatement or demurrer, &c. — U. S. vs. Stowell, 2 Curt. 153; State 
 vs. Barnes, 29 Me. 561 ; Com. vs. Eastman, 1 Cnsh. 189; State vs. Daylon, 3 
 Zab. (N. J.) 49 ; State vs. Beard, 1 Dutch. (N. J.) 384; People vs. Eckford, 7 
 Cow. 535 ; Click vs. State, 3 Tex. 282. They will never quash if the indictment 
 contain one good count, State vs. Staker, 3 Ind. 570 ; State vs. Coleman, 5 Port 
 (Ala.) 32 ; State vs. Malhis, 3 Ark. 84; Com. vs. Hawkin.s, 3 Gray 463; State 
 
170 RIGHT TO BEGIN. 
 
 VS. Wishon, 15 Mo. 503 ; U. S. vs. Potter, 6 McLean 186 ; Kane vs. People, S 
 Wend. 363 ; but it is said that if one count be stricken out or quashed tlie indict- 
 ment is vitiated, Rose vs. State, Minor(Ala.) 28,— so exceptions do not lie to the 
 refusal of a court to quash, State vs. Hurley, 54 Me. 562 ; State vs. Conrad, 21 
 Mo. 2"l. The prosecutor's motion to quash is absolute in .the first instance, Reg. 
 vs. Stowell, 1 D. N". S. 320; 5 Jur. 1010, but the court will impose terms, Rex. 
 vs. Webb. 3 Burr. 1468 ; 1 W. Bl. 460, and will not allow a prosecutor's motion 
 to quash after judgment on demurrer, Reg. vs. Smith. 2 M. & Rob. 109. If the 
 indictment is to be disputed as a valid legal instrument, it may in general be done 
 by motion to quash, set aside the indictmsnt or plea in abatement, as that an 
 indictment was found by a grand jury not legally selected, it will be sot aside on 
 motion, State vs. Hensley, 7 Blackf. 324; State vs. McXaniara, 3 Nov. 70, that 
 they were summoned by the sheriff without precept ; it will be quashed, 5 X. J. L. 
 539; set aside on motion to quash where the venires were unsealed, State vs 
 Lightbody, 38 Me. 200 ; quashed if it is neither endorsed a " true bill " nor 
 signed by the foreman, Johnson vs. State, 23 Ind. 32. 
 
 Any formal pleading to an indictment admits its genuineness, State vs. Clark- 
 son, 3 Ala. 378 ; but the jurisdiction may be objected to at any time. Rice vs. 
 State, 3 Kans. 141. Pleas in abatement to an indictment must be certain to 
 every intent, 1 Mich, 234 ; two such pleas may be pleaded at the same time , 
 Com. vs. Long. 2 Va. Cas. 318 ; they must specifically set forth the grounds of 
 objection, Brenan vs. People, 15 111. 511 ; must state all the essential facts out of 
 which the defenc'o arises, or a negative of the facts presumed in the record. State 
 vs. Brooks, 9 Ala. 10 ; conclude with a prayer of judgment of the indictment, 
 and that it may be quashed, Findley vs. People, 1 Mich. 234 ; State vs. Middle- 
 ton, 5 Port. (Ala.) 484; and signed hj the party in person who pleads it. State 
 vs. Middleton, supra; and verified, Findley vs. People, 1 Mich. 234; Sayer's 
 case, 8 Leigh (Va.) 722. 
 
 Demurrer is the only way to reach the objection tlrat the indictment charges 
 more than one offence ; it is no cause for arrest, People vs. Sholvvell, 27 Cal. 394 ; 
 Stephen vs. State, 11 Ga. 225 ; SUito vs. Brown, s Humph. (Tenn.) 89 ; this 
 objection is waived by failure to demur, People vs. Burgers, 35 Cal. 115 ; but if 
 the indictment contain good and bad counts, it may be sustained as to the bad 
 without affecting the good, Turner vs. State, 40 Ala. 21. In Iowa it is said a 
 demurrer to an indictment should be specific, State vs. Groome, 10 Iowa 108, but 
 in Virginia it is held that all imperfections will be reached by a general demurrer. 
 Lazier vs. Com. 10 Gratt. 708. 
 
 The rule of civil pleading that the party committing the first fault shall have 
 judgment against him holds likewise in criminal pleading, People vs. Krummer, 4 
 Park. Or. 217 ; State vs. Sweetsir, 53 Me. 438 ; if the demurrer to the indictment 
 be sustained the prisoner is discharged, but if overruled the prisoner may accept, 
 
RIGHT TO BEGIN. 171 
 
 State vs. Dresser, 5-1 Me. 569, and should be allowed to plead Rass vs. State, 9 
 Mo. 696 ; McGuire vs. State, 35 Miss. 366 ; and a plea of not guilty must be 
 entered in all cases in which the defendant does not confess the indictment to be 
 true, Meader vs. State, 11 Mo. 363 ; Austin vs. State, id. 366. But in mis- 
 
 , demeanors the court have a discretion on ovrruling a demurrer to allow the defend- 
 ant to plead over ; they may treat the demurrer as a confession of the facts 
 charged, and render final judgment against the defendant, Re.x. vs. Gibson, 8 
 East 107 ; McCuen vs. State, 19 Ark. 630 ; so of pleas in abatement found against 
 defendant, Guess vs. State, 6 Ark. 14*7 ; so at common law a demurrer or plea in 
 abatement confessed the facts charged even in felony, and final judgment and sen- 
 tence will be passed on failure of either, without leave be obtained to plead, Reg. 
 vs. Faderman, 3 C. & K. 359 ; 4 Cox. C. C. 359 ; State vs. Wilkins, 17 Vt. 151. 
 Persons charged with a misdemeanor may, in the discretion of the court, be 
 allowed to plead and defend in their absence, but the court will impose such con- 
 ditions as will insure submission to the jurisdiction, U. S. vs. Seckie, Sprague 227 ; 
 Johnson vs. Com., 1 Duv. (Ky.) 244 ; U. S. vs. Mayo, 1 Curt. 433 ; and, in gene- 
 ral, no step can be taken by defendant on an indictment until he submit himself 
 to the jurisdiction of the court. Sailer ads. the State, 1 Harr. (N. J.) 377 ; so the 
 sufficiency of an indictmfiu cannot be tested upon a set. fa. on a forfeited recog- 
 nizance. State vs. "Weaver, 18 Ala. 293. 
 
 Arraignment is to fi.\ the personal identity of the accused, Hendrick vs. State, 
 6 Tex. 341 ; Douglass vs. State, 3 Wis. 820 ; Harmau vs. State, 11 Ind. 311 ; plea 
 waives arraignment, even in felony, if pleaded in person in open court, and the 
 record shows that fact. You tig- vs. State, 2 W, Va. 579 ; Sperry's case, 9 Leigh. 
 (Va.) 623 ; Goodwin vs. State, 16 Oh. St. 3-14. At common law, if upon arrign- 
 ment for lower grades of felonies a defendant stands mute, a jury is empannalled 
 to try whether he stands mute of malice or act of God ; and on his trial defand- 
 ant is entitled to be fully defended by counsel. Rex. vs. Roberts, Car. C. L. 57 ; 
 and if the jury find he stand mute of malice the court sentence as on a convic- 
 tion. Com. vs. Moore, 9 Mass. 402 ; Rex. vs. Mercier, 1 Leach C. C. 183 ; Rex. vs. 
 Steel, ib. 451 ; but on an arraignment of one deaf and dumb the indictment is to 
 be read and explained to him by a sworn interpreter, then the trial proceeds as on 
 a plea of not guilty, Com. vs. Hill, 14 Mass. 207. 
 
 But under recent statutes, after a jury have rendered a verdict that a defendant 
 stands mute of malice, the court orders a plea of not guilty to be entered of record, 
 Eex. vs. Israil, 2 Cox. C. G. 263 ; Reg. vs. Schleter, 10 Cox. C. C. 409; but if 
 the prisoner declines to plead, the court may direct a plea of not guilty to be 
 entered without a jury, Reg. vs. Bernard, 1 F. & F. 240 ; as when a demurrer to 
 
 an indictment has been overruled, and defendant neglects or refuses to plead fur- 
 ther. Thomas vs. State, 6 Mo. 457 ; Henche vs. People, 16 Mich. 4fi. 
 
172 RIGHT TO BEGIN. 
 
 therefore, the general issue is pleaded, the onus lies on the prose- 
 cutor to prove all the facts essential to show the defendant's or 
 prisoner's guilt ;(2) and in the few special pleas that are used, such 
 
 2. On the plea ^f "not gnilty" it is error to refuse to charge that the burden 
 of showing the truth of the charges is at all times on the State, Black vs. State, 
 1 Tex. App. .368 ; 66 Mo. 121 ; see ante p. 14, n. ; also, to refuse to charge that the 
 jury must be satisfied " beyond a reasonable doubt and to a moral certainty " of 
 the existence of every fact necessary to establish defendant's guilt, Williams vs. 
 State, 52 Ala. 411 ; and if an essential element be unproved the court will direct 
 an acquittal, Peop. vs. Bennett, 49 N. Y. 107, and cannot direct the jury to con- 
 Yiot, however clear the proof, Howell vs. People, 5 Hun (N. Y.) 620. 
 
 The State, when confronted with this plea, has two distinct pres'imptions to 
 overcome ; they have the burden on the face of the pleadings to establish their 
 affirmative ; this may be said to be done when a preponderance of proof is shown ; 
 but they have also to overcome the presumption of innocence in law, thus requir- 
 ing evidence, in addition to mere preponderance, that must exclude every other 
 reasonal>le hypothesis except that of guilt, Martin v.-i. State, 38 <Ja. 293; State 
 vs. Johnson, 19 Iowa 230; and this presumption continues until the State has 
 made out a complete ca^c, Home vs. Pfate, 1 Kan. 42 ; see inife p. 14, n. ; but 
 the defendant's burden is not thus encumbered, as preponderance, merely, is 
 ei'.ourrh to establish a fact in his favor. People vs. Mulgate, 5 Oal. V2'( ; 26 Ohio 
 St. 2 ; 22 Minn. 206; 49 Vt. 50*7. 
 
 These are infflexible rules, to be applied at the trial only, however, for a per- 
 son under indictment is deemed guilty for most purposes — arrest, imprisonment, 
 <tc.. People vs. Dixon, 4 Park. Cr. 651. 
 
 There is a further presumption that a party will not confess guilt, and the bur- 
 ■dbn is upon the prosecution to show that the confession of u, prisoner, offered in 
 ■evidence against him, was made after he was properly cautioned, or at least was 
 not obtained by improper means, Barnes vs. State, 36 Tex. 356 ; Nicholson vs. 
 State, 28 Md. 140 ; Berry vs. IT. S., 2 Col. T. 186 ; Runnels vs. State, 28 Ark. 
 121 ; Earp. vs. State, 55 Ga. 136 ; Garrord vs. State, 50 Miss. 147 ; State vs- 
 Jones, 54 Mo. 478 ; Thompson vs. Com., 20 Graft. 274; and where the witness 
 did not understand all that the prisoner said to him in making such alleged con- 
 fession, no part should be allowed in evidence, People vs. Galebest, 39 Cal. 663 • 
 he should not be allowed to testify as to impressions made upon the mind of the 
 witness, Peterson vs. State, 47 Ga. 524. Where there is counsel for the prisoner 
 it is said the counsel for the prosecution ought always to open the case ; but he 
 should not open if the prisoner has no counsel, unless there is some peouliaritv 
 in the facts of the case to require it. Rex vs. Gascoigne, 7 0. & P. 772 ; and in 
 this opening, counsel will be confined to facts proposed to be proved — can state 
 
EIGHT TO BEGIN. 173 
 
 as picas to the jurisdiction, pleas of autrefois acquit,{l) autrefois 
 convict, collateral issues, such as non-identity, insanity, &c., and 
 
 1. The plea of autrefois convict is sufficient where the evidence necessary to 
 sustain the second indictment would have sustained the first, and also whenever 
 the proof shows the second case to be the same transaction as 'the first, Eoberts 
 vs. State, 14 Ga. S ; I'rico vs. State, 19 Ohio 423 ; Wilson vs. Stale, 24 Conn. 
 .">■ ; State vs. Keoch, 13 T.u Ann 24;> ; although offence called by different names, 
 Holt vs. State, 38 Ga. 18T ; Com. vs. Goodenough, Thach. (Mass.) Cr. Cas. 132 ; 
 Com. vs. Foster, 3 Mete. (Ky.) 1 ; Com. vs. Miller, 5 Dana 320 ; AVinneger vs. 
 State, 13 Ind. 540 ; and whenever a person shall have been given in charge, on 
 a legal indictment, to a regular jury, and that jury are unnecessarily discharged! 
 he has been once put in jeopardy, and the discharge is equivalent to a verdict of 
 an acquittal, Wright vs. State, 5 Ind. 291); McCorclo vs. State, 14 id. 39; 
 Heike.s vs. Com., 26 Pa. :>\:, ; V. S. vs. Shoeiiriker, 2 McLean 114. 
 
 On all these proceedings the right to go forward will belong to the party who 
 has assumed ihe onus upon the plainest applications of the rules laid down pre- 
 viously in this treatise. On the plea autrefois acquit, delendant must begin on 
 the authority of Rex vs. rarry, 7 C. & T. 83G. 
 
 By the plea of guilty, defendant confesses himself guilty in manner and form 
 as charged in the indictment, and if the indictment charges no offence against the 
 law, none is confessed, Fletcher vs. State, 12 Ark. 109; and the plea of nolo 
 contendere has the same efFeot, except that when pleaded with a protestation of 
 innocence it will not conclude the defendant from disputing in a civil action the 
 
 confessions of the prisoner proposed to be proved, if in a condition to prove them, 
 otherwise not, Eex vs. Davis, 7 C. & I'. 783; Rex vs. llartol, id. 773; and if 
 additional evidence be discovered, after the opening and before State's evidence 
 be all in, the evidence must be put in without any additional opening of them to 
 the jury, Reg vs. Courvoisier, 9 C. & P. 302 ; but if the counsel for the State 
 does not, in his opening, disclose a case against the prisoner, ho cannot use state- 
 ments made by the prisoner, except in evidence, Reg vs. Gardner, 9 Cox C. C» 
 332. In criminal prosecution it is not competent to the prosecutor to appear 
 and conduct the case in person, Reg. vs. Gurney, 11 Cox C. C. 114 ; and if he be 
 examined as a witness to support an indictment, he has no right to address the 
 jury as counsel, Rex vs. Brice, 2 B. i A. 606 ; 1 Chit. 352. 
 
 It is a general principle of criminal procedure that counsel for the prosecution 
 should consider themselves not merely as advocates of a party, but as minister: 
 of justice, and not as struggling for a verdict, but as assistants in the ascertain- 
 ment of truth according to law, Reg vs. Berens, 4 F. & F. 842 ; Reg vs. Hurs, 
 field, 8 0. & P. 269. 
 
174 RIGHT TO BEGIN. 
 
 the special plea in answer to an indictment for not I'epairing a. 
 highway, that others and not the pariah are bound to do so ; we 
 have only to keep in mind the general principle, and apply it. It 
 has been said that in general the party who adds the similiter 
 has to begin. Archbold's Q. S. 127. 
 
 Section 3. 
 Of the Right to Begin in Appeal at Quai'ter Sessions. 
 
 § 115. By several acts of parliament, a right to appeal to the- 
 Court of Quarter Sessions is given against various acts, judicial 
 or ministerial, of magistrates, parish officers, &c. In these pro- 
 facts charged in the indictment, Com. vs. Horton, 9 Pick. 200 ; and a plea of not 
 guilty by several defendants is in law a several plea, State vs. Smith, 2 Ired. 
 (N. 0.) L. 402 ; and by this plea all mere formal objections to the indictment is 
 waived, Guykowski vs. People, 2 111. 476 ; and in general, an indictment cannot 
 be impeached by plea or evidence at the trial, People vs. Halbut, 4 D^n. 133. 
 
 The defendant, of course, has the same right to open the facts of his defence 
 before the jury; and he may do it in person or by counsel, and counsel will not 
 be allowed to appear for the prisoner without his consent, Rex. vs. Southey, 4 P. 
 & P. 864; Reg. vs. Tscuado, 6 Cox. 0. C. 386 ; but on trials for felonies, prison- 
 ers defended by counsel ought not to be allowed to make a statement to the jury 
 in their defence, Reg. vs. Manzano, 8 Cox. C. C. 321 ; 2 P. & P. 64 ; 6 Jur. (N. 
 S.) 406 ; a prisoner will be allowed to make his own statement to the jury, but his 
 counsel cannot, as of right, address the jury for him, Reg. vs. Taylor, 1 P. & P. 
 535 ; Reg. vs. Boucher, 8 C. &. P. 141 ; Reg. vs. Burrows, 2 M. & Rob. 124, with- 
 out permission of the court, Reg. vs. Stevens, 11 Cox. C. C. 669 ; Reg. vs. Malins, 
 8 C. & P. 242 ; and where defendant opens the cause in person and examines and 
 cross-examiiies wilnesses, his counsel may argue points of law for him, Rex. vs. 
 Parkins, 1 V. & P. 548 ; B. & M. 166 ; Rex. vs. White, 3 Camp. 98 ; but no more- 
 than two counsels are entitled to address the court for a prisoner during the trial 
 on a point of law, Reg. vs. Bernard, 1 P. & P. 240. 
 
 The prisoner's counsel, in opening, will not be allowed to state anything which 
 he is not in a situation to prove, or which is not already in proof, Reg. vs. Beard 
 '8 0. & P. 142 ; Reg. vs. Butcher, 2 M. & Rob. 228. The rights and duties of 
 counsel will be further considered under " Reply," chap. 111. 
 
RIGHT TO BKGIN. 175. 
 
 ceedings it m&j be said, in general, that it lies on the respondent 
 to begin and prove his case ; but as they differ very much in their- 
 nature and subject-matter— the onus probandi in some lying on 
 the appellant, though, in the majority, on the respondent— the 
 above rule is by no means of universal application. 
 
 Owing to the fact that the decisions of the Sessions, in all 
 matters brought before them by appeal, is final, and cannot be 
 reviewed or questioned even by the Court of Queen's Bench,, 
 unless they think proper to send up a case for its consideration -^ 
 *76 and as this latter case has occasionally exhibited *an unwil- 
 lingness to interfere or decide upon questions which merely relate^ 
 to the practice at Sessions,(^) it has followed that the practice at 
 these courts throughout the kingdom has been, hitherto, in many 
 respects, anything but uniform. However, as the Queen's Bencb> 
 has, in some important instances, abandoned its reluctance to- 
 interfere in this respect, and pronounced some decisions whicli. 
 have been leading cases on the subjects to which they i-efer, and 
 been generally followed by the Courts of Quarter Sessions through- 
 out the kingdom, it is to be hoped that by a perseverance in the- 
 same course, and laying down some general rule when any point 
 of this description presents itself, a uniformity in the practice of 
 those tribunals will ultimately be established.(/t) 
 
 § 116. Appeals may be brought to Sessions on any of the fol- 
 lowing subjects: — 1. Against poor's rates. 2. Against orders of" 
 removal. 3. Against the appointment of overseers of the poor„ 
 4. Against the allowance of overseers' account. 5. Against the 
 disallowance of overseers' accounts. 6. Againt county rates. 7- 
 Against orders for stopping up highways. 8. Against j^i'oceed- 
 ings under inclosure acts. 9. Against convictions of magistrates.. 
 And of these we propose to treat in their order. 
 
 {<;) Eex vs. Newbury, i T. E. 475 ; Kex ing, anil where the appeal comes on to bp- 
 Ts. Justices of Suffolk, B M. & S. 57. heard naked and destitute of all evidence 
 
 (h) Lord Kenyon.iii Bex vs. Newbury, before the court, those who have done- 
 supra, said: "In writs of error and ap- the act ought to establish the propriety 
 peals to 1 he House of Lords, where each of it by evidence. However, where ol> 
 party is in possession of all the evidence .jectlons of form are raissd to convictions- 
 on both sides, tbe party who Impeaches for matter apparent on the face of themt, 
 the decision below always begins; but in the appellant's counsel begins," &a. See- 
 a case of this kind, (an appeal against a K. vs. Knill, infra § V2\. 
 poor rate,) wliere it is an ea;par<e proceed- 
 
T7'6 RIGHT TO BEGIN. 
 
 Ill appeals against poor's rates it has been laid down by the 
 ■Queen's Bench, and seems generally understood to be the prac- 
 tice, that where the ground of appeal is that the appellant has 
 no ratable property within the parish, and consequently ought 
 not to be rated at all, that (after the notice of appeal has been 
 produced, or not called for) it lies on the respondent to begin ; 
 but that where the appellant admits that he has property in the 
 ^*77 parish, and consequently *his general ratability, but dis- 
 putes the quantum, and complains either that he has been rated 
 too high, or other parties too low, that there he must begin, as 
 the onus of reducing the rate clearly devolves upon him. And 
 ■where the appeal is in the alternative, viz., that the party is not 
 ratable at all, but even if he be not to the amount imposed, it 
 still lies on the respondent to begin ; for " where the appeal comes 
 on to be heard, naked and destitute of all evidence, before the 
 court, those who have done the act ought to establish the pro- 
 priety of it by evidence." Per Lord Kenyon, C. J., in Eex vs. 
 Newbury, 4 T. R. 476. 
 
 § 117. Where the onus of proving both the ratability and the 
 •quantum of rate lies on the respondents, it is not sufficient for 
 them to prove that the appellant has some ratable property in the 
 parish, in order to transfer to him the onus of showing that he 
 is overrated ; they are bound to go farther, and show some prob- 
 able ground to justifj^ them in the amount for which he has been 
 rated. 
 
 § 118. This is well illustrated by the case of Eex vs. Topham.(2) 
 There the appellant was rated as occupier of property of the 
 ■annual amount of £250, and the grounds of his appeal were, 
 that he had no ratable property in the parish, and not to the 
 -amount to which he was rated. The respondent having begun 
 -and proved that the appellant was in the annual receipt of certain 
 tithe rents, originating in an inclosure act, of the annual value 
 •of 6s. 8d., and that other sums, of the amount of which no proof 
 ^vas given, were received by him for tithe rents, closed their case, 
 -and contended, that as they had proved the appellant to be in 
 
 (t) 12 East. 516. 
 
RIGHT TO BEGIN. 177 
 
 possession of some ratable property, it lay on him to show that he 
 was overrated. It appeared that the appellant was lessee of the 
 prebendary of D., who was entitled, under the inclosnre act, to a 
 *78 yearly rent or composition in lieu of the *tithes of corn, 
 ^rain and hay therein, of £267 ; to be paid by the owners and 
 proprietors of certain lands in certain proportions: and by the 
 act, in all fnture rates and levies in the said townships, the com- 
 position rents were to he assessed in the same proportion as the 
 other landholders. On this case coming before the King's Bench, 
 Lord Ellenborough, C. J., said : •' The question is, whether a per- 
 son, who I will suppose for the present is liable to be rated for 
 something beyond the 6s. 8d., can be rated to the amount of 
 £250, and then left to pare down the assessment, upon an ajipeal, 
 to the amount to which it ought to be? lie niio-ht as Avell have 
 been charged to the extent of .-£50,000. When the question before 
 the Sessions is upon the quantum of the rate, the officers making 
 it must show to the justices some probable ground for the amount 
 iit which they charge the party in the rate. The mischief of any 
 other rule would be enormous ; a small occupier might be rated 
 -at once in, the round sum of £1000, and left to struggle his way 
 out of the charge as he could." Decision accordingly. 
 
 § 119. It seems, also, that when a party appears against a rate, 
 on the ground that others have not been rated who were liable 
 to be so, he is not bound to furnish the Sessions with materials 
 to enable them to amend the rate. Thus, in Rex vs. Hull Dock 
 "Company,(/i-) where the appellants objected to a rate, on the ground 
 that certain ship-owners were not rated for their ships, it was 
 said, per Abbot, C. J. : "It was pressed on us in the argument, 
 that as the appellants had not made out what was each ship's 
 profit, they had not given to the Sessions the means of amending 
 the rate ; but this is founded on a misapprehension of the duties 
 -of the parish officers and the appellant. Where prroperty is 
 ratable, it is the duty of the officers to include it in the rate, and 
 to take what means they can to ascertain its value. It is not 
 ^79 *for them to omit it altogether, and to cast upon the appel- 
 
 (k) :< n. & C. 51"; 5 D. & 11, 35(1. 
 
178 RIGHT TO BEGIN. 
 
 lant what is properly their daty, the burden of proving its value. 
 In eases of single omission, the difficulty might not be very great ; 
 but if all the property of a given description is omitted, the diffi- 
 culty mnst be excessive. 
 
 § 120. Before 41 Geo. Ill, c. 23, the omission of a single indi- 
 vidual, who ought to have been included, compelled the Sessions 
 to quash the whole rate, and so as he was ratable at all, the extent 
 to which he was ratable was not in question. The 41 Geo. Ill 
 requires the Sessions to alter or amend a rate appealed against, 
 without quashing it, but with proviso that if the Sessions shall 
 think it necessary, for the purpose of giving relief to the appel- 
 lant, to quash the rate, they may do so ; and when a rate contains 
 so many omissions that it can hardly be expected of an appellant 
 that he should have evidence to show the extent to which each 
 person omitted ought to be rated, and where the investigation 
 before the Sessions would be likely to exhaust more time than 
 they could reasonably be required to give up, we think it wciuld 
 not be an improper exercise of their discretion to quash the rate, 
 and make the officers do in the end what they ought to have 
 done in the beginning." 
 
 § 121. In appeals against orders of removal, a practice, it 
 seems, formerly prevailed at some Courts of Quarter Sessions, to 
 require of the appellant to show, in the first place, the settlement 
 of the pauper out of the appellant parish. (i) The course, how- 
 ever, was strongly and justly condemned by an able writer, as 
 being contrary to all principle, (2 Poth. 146,) and the practice at 
 last totally abandoned ; for we since find it clearly established as- 
 a principle, that (after proof of notice, if required) the respon- 
 dents were always entitled to begin, Eex vs. Knill,(?n) and even, 
 though the appellant at the trial chose to admit a ■prima facie 
 *80 case *in the respondents, and in fact began, yet the cas& 
 was always treated as if the respondents had begun, and they 
 
 (Z) Eex vs. Wolforcl, Calil. 236. ilerof affiliation, lliileil tli it tlin respond - 
 
 (m) 12 East. 50, wliicli was a case npon uiits iriiisl bugiii l)y snppoiliiig tlirii- 
 an appeal 10 the Sessions against an Of- oi'der. 
 
RIGHT TO BEGIN. 179 
 
 were cited to the general reply.(w) It has, however, been recently 
 enacted by 4 & 5 W. IV., c. 76, s. 81, that " The overseers or guardi- 
 ans of the appellant parish, &c., shall with such notice, i. e., of appeal, 
 or fourteen days at least before the first day of the Sessions at which 
 such appeal is intended to be tried, send or deliver to the over- 
 seers of the respondent parish a statement in writing, under their 
 hands, of the grounds of such appeal, &c.," and it has been argued 
 that if the appellants, in the statement so furnished, do not den}' 
 the respondent's case, as stated in the examination, they thereby 
 admit it, and the respondents are not bound to prove it ; and 
 therefore, that under these circumstances, the appellants have a 
 right to begin ; and it is said that it has been so ruled at one or 
 two Courts of Quarter Se3sions.(o) 
 
 § 122. This proposition, however, is at least questionable, and 
 is a subject which a decision of the Court of Queen's Bench will 
 be requisite in order to settle ; the reader may see the question 
 discussed in the work of Mr. Archbold ajready quoted, who cer- 
 tainly argues with considerable ingenuity in favor of the posi- 
 tion, that the notice of the grounds of appeal admitting the primn 
 facie case of the respondent, does not shift the onus proband!, or 
 entitle the appellant to begin, and concludes by saying "that it 
 is useless to discuss the question further ; probably some case will 
 shortly be decided upon the point by the Court of Queen's Bench, 
 and until that takes place, each Court of Quarter Sessions will 
 adopt a practice in this respect according to the particular view 
 *81 it may take of the subject." Vide Arch. Q. S., in loc. cit.* 
 
 § 123. In appeals against the appointment of overseers of the 
 poor, whether by a person appointed or otherwise, it seems that 
 the general rule prevails that the respondent shall begin. (^) 
 
 In the case of a party appealing against the allowance of over- 
 seers' accounts, Mi\ Archbold says : " I believe it is usual at most 
 Sessions for respondents to begin ; by the notice of appeal they 
 are apprised of the items objected to, and of the grounds of 
 objection to them; if the appellant, by his notice, say that the 
 
 (n) Arcli, Q S. 303, and infra §§ 16), 1G3. (o) Arcli. Q. S. 281. f;)) Aix-li. Q. S. :i.!9. 
 
l&O RICiHT TO BEGIN. 
 
 payments charged were not in fact made, the respondents may 
 prove that they were ; if the appellant object to their legality on 
 certain grounds, the respondents may show that the objection 
 does not apply, or is unfounded in point of law." Arch. Q. S. 
 343. And with respect to appeals against the disallowance of 
 those accounts: "There are no cases, and very ^little practice in? 
 this kind of appeals, from which any rule can be deduced as to 
 whether the appellant or respondent shall begin ; the general rule- 
 in appeals is, that the respondent shall begin ;'and it will be best, 
 perhaps, to adopt that rule in this particular case, especially if 
 the justices have not stated, at the foot of the account, their rea- 
 sons for disallowing or reducing the items in question ; for the- 
 appellants ma}' not know in what manner to sustain the items- 
 objected to, until the respondent apprise them of the objections. "(g'} 
 
 § 124. When a general rate is made on a whole county, under 
 12 Geo. II, c. 29, for the various county purposes, to be assessed on 
 every town, parish, or place within it, an appeal is given by the- 
 same statute to any town or parish which may deem itself over- 
 rated, against such part of the rate as affects them, leaving the- 
 rest untouched. In such appeals it is manifest that the onus'pro- 
 bandi — /. e., the showing that they are overrated — lies on the- 
 *82 appellants ; and accordingly *it is the established practice- 
 for them to begin, and ])rove how they are injured by the rate. 
 
 § 125. By 5 & 6 W. IV., c. 50, s. 84, a power is given to two> 
 justices, under certain circumstances, and after complying withi 
 certain forms, to certify, under their hands, that certain hio-h- 
 ways ought to be stopped altogether, as unnecessary, or that the- 
 courses of them should be changed into others more commodious- 
 for the public, and to transmit the certificate to the clerk of ther 
 peace, who shall read it at Sessions, and have it enrolled there 
 among Ihe records of the county. The same statute also gives 
 an appeal to the Sessions to any party who may consider himself 
 aggrieved by the stopping up or diverting any such highway ;, 
 the questions of fact in which appeal, unlike all others at Ses- 
 sions, shall be determined by a, Jury, and not by the justices. 
 
 (7) Avch. Q. B. .•!64, 
 
RIGHT TO BEGIN. 181 
 
 Here, also, it is obvious, that the onus probandi and right to begin 
 lie upon the appellant. 
 
 § 126. By the General Inclosure Act, (41 G. III., c. 109, s. 3,) 
 and the acts amending it, (1 & 2 G. IV., c. 23 ; 3 & 4 W. IV., c. 35, 
 s. 3,) a right to appeal to the Sessions is given in certain cases- 
 And the local inclosure acts generally give the same right to an}- 
 person who may consider himself aggrieved by the determination 
 of the commissioners under them. This is another of those cases 
 where it devolves on the appellant to begin, as the onus lies on 
 him to show how he has been aggrieved. 
 
 § 128. In appeals against convictions by magistrates, the 
 appellant's objection to the conviction may either be one of furm, 
 or one of substance. Convictions are frequently quashed for want 
 of form, and then it becomes unnecessary to go into the merits 
 of the case. But if there be no formal objection taken, or such 
 as are taken are overruled, then, as the conviction is for some 
 oflence against the law, of which the appellant contends he is not 
 *83 guilty, he is *accordingly in this, as in all other criminal 
 proceedings, entitled to a presumption of innocence in his favor, 
 and the onus of provinghisguilf lies on the respondents. They, 
 in this case, therefore, are always called upon to begin and show 
 how the appellant has been guilty of a breach of the law.(r) 
 
 (r) The chairman has tlie s.ime risht to numbers, iiiclmlina; his owa vole, slionl.t 
 vote aa uny other jastice present, bat has be equnl ; for inter pares nr/rtr est po^atas, 
 no casting or double vote in case the Dickson'™ Q S. B17. 
 
CHAPTER III. 
 
 OF THE RIGHT TO KBPLY. 
 
 I 129. The general rule on the subject is thus very correctly 
 -.•stated in some old books : " The counsel of the party which doth 
 begin to maintain the issue, whether of plaintiff or defendant, 
 •ought to conclude." Vin. Ab. Evidence, S. a. 7, cites L. E. 5, 
 pi. 11 ; Trials per Pays 229.(1) Accordingly it is immaterial 
 
 1. Litigants have a constitutional right to appeal- in a cause and be represented 
 ))y counsel ; and the fullest liberty and range of argument should be allowed. In 
 •criminal cases this constitutional right means only a hearing upon the facts duly 
 presented in evidence, Wilson vs. State, 3 Heisk. (Tenn.) 232. Upon a 
 question of law addressed to the court, it is discretionary whether they will hear 
 4in argument, Howell vs. Coni., 5 Gratt. G64. Dr. Minor, in his Inst., vol. 4, p. 
 734, says : " If instructions from the court are to be asked for, they ought to be 
 submitted before the argument is commeficed, so that the law of the case may be 
 in the minds of the jury during the discussion. And when, in a civil case, the 
 •opinion of the court is expressed upon any legal point arising in it, that opinion 
 is not to be controverted by counsel, but a bill of exceptions should be taken, 
 Delaplane vs. Crenshaw, 15 Gratt. 457. But in the discretion of the judge he 
 juay postpone an instruction until after the argument, or may allow it then to be 
 •asked for, Bait. & 0. R. E. Co. vs. Polly, 14 Gratt. 447." See ante p. 40. Within 
 the limits of the testimony, and the declarations of law, the right of argumenta- 
 tion, illustration and comment is free, and thej^ have a right, by way of illustra- 
 tion, to read extracts from works on science, not given in evidence, but not use 
 -them as a pretence of getting improper matter before the jury as evidence, Legg. 
 vs. Drake, 1 Oh. St. 286, or a new trial will be granted, Baldwin's Ap., 44 Conn. 
 37. In criminal cases they may argue to the jury the law as well as the facts, 
 .Lynch vs. State, 9 Ind. 541 ; Kane vs. Com. May, 1879, Pa. ; State vs. Crotean, 
 28, Vt 14; U. S. vs. Wilson, Baldw. 99 ; see ante p. 34; and for this purpose 
 may read extracts from law writers — informing the jury that they are to be so 
 .regarded, and not as evidence, Harvey vs. State, 40 Ind. 516. Yet, when counsel 
 in a criminal case have requested the court to state the \»^\, they have no right 
 to .argue to the jury that the instructions thus given were erroneous, Edwards vs. 
 (182) 
 
RIGHT TO REPLY. 183 
 
 whether the onus probandi and the right to begin originally lay 
 on the party affiriuing or the party denying, or whether that party 
 were plaintifl" or defendant ; in any case he who begins ougtit to 
 conclude. 
 
 § 130. This principle, like that which throws the burden of 
 proof on the piarty who makes the affirmative allegation, is by no 
 means confined to legal proceedings, nor is there anything arbi- 
 trary in its nature. We find it allowed, in all discussions in par- 
 liament and elsewhere, that the proposer of any question or the 
 opener of any discussion has a right to make a speech in reply, 
 
 State, 22 Ark. 253; DavtMiiiorfs uuse, 1 Leigh. (Va.) .588. But in civil cases 
 counsel havo not the right, generally, to either quote or argue the law to the jury, 
 except by way of statement or hypothesis, as they must take the law from the 
 coitrt, Fuller vs. Talbot. 23 111. 3fi7 ; Butler vs. Slam. 50 i'a. St. 450 ; Gowl vs 
 ifylin, 13 id. 53y ; State vs. Klinger, -IC Mo. 224 ; Sprague v-. C'raig, 51 111. 2,Ms! ; 
 Philpot vs. Taylor, 75 111. 309. 
 
 ■The freedom of argumentation does not extend to the assumption of facts not 
 in evidence as the Ijasis of argument. It is the duty of the presiding judge to 
 interpose sita spon/r. especially if his attention is called to the impropriety, Per- 
 kin's Adm's vs. Gay, Miss. Peb'y. 4, 1S78; 5 Eeport'r 399; 11 Ga. 633; Ift id. 
 511 ; 25 id. 227 : Cook vs. Hitter, 4 E. D. Smith, (N. Y.) 253 ; Rolfe vs. Ram- 
 ford, GO Me. 204; (rould vs. Moore, 40 X. Y. Superior Ct. 387. The court may 
 properly refuse to allow the plaintiff's counsel to argue a case Vjcfore a jury when 
 there is no evidence in the cause, legally sufficient from which they could find a 
 verdict for the plaintiff, Hodges vs. Aekerman, 11 Ex. 214 ; 24 L. J. Ex. 257 ; Bank 
 ard vs. Bait. Arc. E. R. Co., 34 Md. 197 ; but that counsel testified as a witness is 
 no reason why he should not sum up, Branson vs. (.'anthers. 49 Oal. 375. 
 
 When the counsel in the closing argument. endeavors to influence the minds of 
 the jury by reference to matters not in proof before them, it is the duty of the 
 presiding judge to interfere and repress the reprehen-ible practii/e. Read vs StaJc, 
 2 Ind. 438 ; Tucker vs. Henniker, 41 N. H. 317. 
 
 There is a just distinction between the effect and use of comments upon assumed 
 evidence wliick does not exist, and the non-iiilroduiiina of appropriati- t vi- 
 di-nre by the opposite party when it obviously does exist ; so the non-introdnctiou 
 of a settlement, in which it is relied that a note, the subject of the action, was 
 brought into account and satisfied, is a proper circumstances for comment before 
 the jury, on the trial for the recovery for the amount of the note, Chamhei-s v.s. 
 Brigman, OS N. C. 274. (_)n an issue whether an indor-sement was genuine the 
 
 13 
 
184 RIGHT TO REPIA'. 
 
 after the opposite party has been heard ; and it is based on this 
 obvious principle of justice, that he who is heard first cannot pos- 
 sibly, know what arguments will be urged or what proofs will be 
 resorted to by the other side ; and however ingenious those argu- 
 ments or however plausible those proofs, still he may, if heard in 
 reply, be able either to refute them altogether, or explain them in 
 such a way as to render them consistent with the case he has in 
 the first instance advocated. 
 
 § 131. Such is the general principle, but in practice some limi- 
 *8r) tations *have been placed to the privilege. It is obvious 
 that the respondent or defending party must, in his answer to the 
 
 maker testified that, among other notes endorsed for him by the defendant in 
 their business transaction, was one corresponding in date and amount to the note 
 in suit, and that, these transactions were entered in his books of account, which 
 were in the defendant's possession. Held, that the plaintiff might comment to 
 the jur}' on the defendant's omission to put the books in evidence. Huntsman vs. 
 Nickols, 116 Mass. 521. So a defendant's sworn plea may, in argument, be com- 
 mented on as a sworn statement, and may be compared with his testimony to 
 disparage it, Mcl^endon vs. Frost, .57 Ga. 448. 
 
 But, on the other hand, parties are quite excusable in abstaining from giving 
 their own evidence if they deem it not absolutely essential, because interest 
 always does and must subject it to more or less suspicion, Anderson vs. Eussel, 
 34 Mich. 109. So it is held a privilege, and not a duty of party to an action, to 
 offer himself as a witness in his own behalf; and the fact that such privilege is 
 not e.xercised is not the subject of comment before a jury, Gragge vs. Wagner, 
 77 N. C. 24(j ; 03 N. C. 53 ; but if a party actually declines to testify upon what 
 he knows pertinent to his cause, it is a, circumstance for the consideration of the 
 jury, and the omission of the defendant in a criminal case to call, as a witness, a 
 person in his employ and interest, who could probably explain facts already 
 proved, tending to show the defendant's guilt, if capable of being explained 
 favorably to the defendant, may properly be commented on, Gom. vs. Clark, 14 
 Gray 467. 
 
 The speech of the plaintiff's counsel, in opening the case, should be limited to 
 a fair statement of the nature of the case and the facts he expects to prove, such 
 as is proper to enable the court and jury to understand the bearing and relevancy 
 of the evidence as it may be offered. Wicks vs. Smith, 18 Kans. 508 ; and for him 
 to read documents which he may intend to offer in evidence is improper, for it 
 tends to bring them to the knowledge of the jury before the court has had oppor- 
 
RIGHT TO REPLY. 1S,5 
 
 case of the opener, adopt one of these three courses : 1. He ma}' 
 state his case to the jury, and give evidence to establish it. 2. 
 He may confine himself to addressing the jury and commenting 
 on the facts already put in evidence on the other side, but neither 
 adduce any now evidence himself or state any new facts material 
 to the question. 3. He may in his speech state some new facts 
 or circumstances not previously proved on the opposite side, but 
 adduce no fresh evidence to establish them. These three predica- 
 ments shall be considered in their order. 
 
 tunity to decide on their admissability, Scripps vs. Kielly, a.") Mich. 3'L, or the 
 test of cross-examination, Baldwin's appeal, 44 Conn. 37. 
 
 The lengtli of time to be occupied in discussion, and the determination of the 
 legitimate questions for argument, must necessarily be left to the sound and legal 
 discretion of the judge presiding, Dobbins vs. Oswalt, 20 Ark. (;19 ; Brooks vs. 
 Perry, 23 id. 32 ; Cory vs. Silcox, fi Ind. 370; State vs. Page, 21 Mo. 257 ; Fre- 
 leigh vs. Ames, 31 Mo. 253 ; Trice vs. Ilanibal, &<: , K. R. Co., 35 id. 416. 
 
 As to the legal discretion the court says, in Dille vs. State, 34 Ohio St.. S 
 Eeporter 093 : •■ 'J"he court has no discretionary power over the right itself, for it 
 cannot be denied. And hence it has no right to prevent the accused from being 
 heard by counsel, even if the evidence against him l^e clear, unimpeachod and 
 conclusive in the opinion of the cou4-t. But the exercise of that right is subject 
 to judicial control to the extent that it is necessary to prevent the abuse of it. 
 The point seems to be so well settled in this country that it is n-.-cdless to cite 
 authorities from other states upon it. It is the practice in this state, so far as 1 
 know, to allow a person accused of felony to be heard liy two counsels if he so 
 desires. If a prisoner is unable to employ counsel, the court shall assign him 
 counsel, not exceeding two, who shall have access to the accused at all reasonable 
 hours. This may be regarded as an CApression of legislative intent on the snl)ject 
 
 There were seven witnesses for the State and four for the defendant. It was 
 entii'ely circumstantial, and there was serious conflict in it. Under those circum- 
 stances, when the defendant's liberty was at stake, and an ignominious punish- 
 ment threatening him, he was entitled to be heard in a reasonable manner liy 
 both counsel wdiom he had employed for his defence. His counsel sufficiently 
 indicated that in their judgment the thirty minutes allowed for argun\2nt was 
 insufficient, by promptly protesting against it, and the defendaiit saved his right 
 by excepting to the limitation at the time it was imposed. A majority of the 
 court finds that a limitation upon the argument was such an abuse of the power 
 of the judicial control over the subject as deprived the defendant of a fair trial." 
 Picversed and remanded. See Word's case. 3 L"igli. (Va.) 74:i. 
 
1S6 KIUHT TO RKPLY. 
 
 § 132. It is universally admitted, and in every day's practice, 
 that when the defendant or party who is to speak second, calls 
 witnesses or puts iu any evidence to the issue, that the counsel 
 who began has, what is called, a right oi general reply, i. e., he may 
 reply on the whole case as it then stands before the jury, and is 
 not confined to answering those fresh portions of evidence which 
 have been adduced by his adversary.(l) It is immaterial whether 
 
 1. There is a necessary distiuction between a general and a special reply. We 
 sliall endeavor to develop this distinction in the light of several cases, Eyon, C. 
 J., in Brown vs. Swinford, Wis., 1878, 6 Reporter 639, said : " It appears by the 
 bill of exceptions that the counsel for the plaintiff waived the opening argument 
 to the jury. A very strict rule might hold this to give the other side the right 
 to close. If such a waiver should still leave the closing argument to the plain- 
 tiff^ it certainly confined it to a strict reply to the defendant's argument — exclud- 
 ing general discussion of the case. If the party entitled to the opening argu- 
 ment, relying on the strength of his case without discussion, waive the right to 
 discuss the case generally, he should not be permitted to do so out of his order, 
 aud alter the mouth of the other party is closed. His close, if permitted to close 
 the argument, should be limited to comments on the other side. This is essential 
 to the fairness and usefulness of judicial discussion at the bar.'' 
 
 In Barden vs. Briscoe, 36 Mich. 257, Campell, J., says : " It appears from the- 
 bill of exceptions, that after the parties had rested the case, counsel for the plain- 
 tiff opened the case to the jury, and occupied less than one hour in making and. 
 opening argument, and that he closed said opening argument as far as he desired 
 then to do. The counsel for the defendants stated that they should only address- 
 the court on questions of law, and should not address the jury, who were allowed 
 to be absent during the legal arguments. When these were closed the counsel 
 for the plaintiff desired to make u, closing argument to the jury on the facts, but 
 the court refused to permit him to do so. 
 
 " It is certainly important to the administration of justice that no one be 
 deprived of full benefit of counsel. And it ought not to be allowed to counsel . 
 by any strategy or artifice to prevent a fair hearing. But it is necessary, in con- 
 sidering this matter, to regard the ordinary course of procedure. Usually the 
 plaintiff's opening must indicate what the defendants are expected to meet. They 
 have a right to know what arguments are to be used against them, and this they 
 can only learn from the opening, inasmuch as they have no reply. In most cases, 
 if they do not think the opening requires any arguments to fortify thair case 
 against it, they may fairly let the case go to the jury as it stands, and no reply i;* 
 needed where there is nothing to reply to. 
 
RIGHT TO REPLY. 187 
 
 the evidence thus adduced be entirely verbal or entirely written, 
 ■or i:iartly verbal or partly written, or be trifling, insignificant, or 
 
 •' But while this is true in theory, it is also true that when all the testimony is 
 in, the defendants know perfectly well before the opening what the line of argu- 
 ment against them must be, and that its effect upon the jury will depend more or 
 less upon the skill and force of opposing counsel in presenting the facts. 
 
 ■• As only one counsel opens, and as when there are more than one, the ground 
 .is usually divided, and the junior usually proceeds, the effect of cutting off a 
 ■reply, may be to prevent the whole case from being thoroughly presented. We 
 ■cannot think there is any absolute right in the defendant to produce such a result. 
 Every court is bound, in fairness, to pievciit such abuses. But inasmuch as the 
 propriety of interference must depend upon circumstances, we think the matter 
 ■comes within those di.'^crefionary rules which must, unless in extreme cases, leave 
 the trial judge to determine the course of procedure." 
 
 In Lyre vs. ]N[orris, 5 Harr. (Del.) 3, the evidence closed; plaintiff's counsel 
 openi-d ; defendant's counsel declined; plaintiff's counsel desired to addiess the 
 jury on the facts again ; which was refused. 
 
 In Wynn vs. Lee, .') (ia. "217, the court laj'S down the rule generally that in a 
 trial before a jury, the party entilled to the conclusion should state to opposing 
 counsel, before the latter addre.^^es the jury, the grounds in the pleadings upon 
 which he expects to rely, and the points of law he intends to make to the court, 
 and shall read or present to him the authorities which he intends to use ; and the 
 counsel, in conclusion, shall be confined in his argument to the grounds, points 
 and authorities thus exhibited. In Cutter vs. Thomas, 24 Vt. 647, it is laid down 
 that the party who merely refers to cases in his opanmg argument, without read- 
 ing, is understood to acquiesce in such authorities not being read ; and unless 
 they are read by the opposite side he is not strictly entitled to take them up again. 
 
 In Morales vs. State, 1 Tex. App. 494, the court says : " Counsel for the State, 
 in his opening address to the jury, should fairly develop his case, and state the 
 law on which he relies. If he defers this till his second address, the presiding 
 judge may allow the defendant's counsel to reply, and afterwards permit the 
 .state's counsel to close the argument." 
 
 'I'he party entitled to the general reply is entitled to comment— 1st, upon the 
 gronmls, points and authorities upon which he has laid the proper foundation in 
 his opening, "VVynn vs. Lee, supra ; 2d, by way of distinguishing away, contro- 
 verting and neutralizing the case asset up by the responding party, without intro- 
 ■ducinn- new matter, unconnected with the defence and not tending to controvert 
 <ir disprove it, conforming in all respects to the rule for producing f/7,V?c)«Y' in 
 reply, av/j- p. 82. This is general reply. 
 
 A special rejjly is a reply which includes only the second branch of tlic general 
 
188 RIGHT TO REPLY. 
 
 insufficient in itself to answer the purpose for which it was given ; 
 so as it is legal evidence, such as can be left to the jury, it equally 
 gives the opener the right of general reply. (s)(l) 
 
 («) Per Lord MansfleUl, C. J., Kex vs. ly, 5 C. & P. 319; Aroli. Q. S. 2tS ; Buzzell 
 Home, 20 Ho. St. Ti-. fiiii. And see, foi' v.s. Snell, 2j N. H. 47i; Belknap vs. Wen- 
 examples, Doed. Chambei'layne vs. Lloyd, dell, 21 id. 17); Cliesley vs. CUesley, 37 N. 
 Peak Ev. 5; Bulford vs. Ci'oke, id.; H.229; Huntington vs. Conkey, 33 Barb. 
 Hodges vs. Holder, 3 Camp. 363 ; Jackson 218; Lexington, iSfco., Ins. Co. vs. Paver, 
 vs. Hesketli, '2Slark. 51S; Bedell vs. Rus- 16 Ohio Sli; Tobin vs. Jenkins, 23 Ark. 
 sell, E. & il. iOi; Cooper vs. Wakely, 3 C. Ii5l; CoUvell vs. Brownr, 73 111. !jlO; anie 
 & P. 474; M. & M. 273; Cotton vs. James, 3 pp. 8S, 89, 90. 
 C. & P. 50.5 ; M. & M. 27.5 ; Jones vs. Brear- 
 
 1. Admissions in the pleadings will have the same effect ; as if a cause be sub- 
 mitted on bill, answer, and general replication, and no evidence be offered, defend- 
 ant is entitled to the conclusion. Fall vs. Simons, 6 Ga. 265 ; for by the general rep- 
 lication the complainant admitted the sufficiency of the answer in pointof law to bar 
 the action. Slater vs. Ma.xwell, 6 Wall. 275 ; Story Eq. PL, 1 697 ; Flagg vs. Bonnell. 
 2 Stock. 85 ; Miller et als., vs. Wack et al.. Sax. 209 ; Bogardus vs. Trinity Church, 
 4 Paige 178 ; Briggs vs. Pennman, 8 Cow. 387 ; and the only question, then, was 
 
 reply, supra, and excludes the first, Brown vs. Swinford, Morales vs. State, supra ; 
 as in the case of Arden vs. Tucker, infra § 162, and Brown vs. Swinford, supra ; 
 Harvey vs. Mitchell, 2 M. & Rob. 366. The learned judge, in the case of Barden 
 vs. Briscoe, supra, is sensitive to the "strategy" of responding counsel refusing- 
 to sum up a defence after an indicated partial opening. Ho admitted that in 
 theory so much of the opening as was not opened might be deemed waived. But 
 the "strategy" of the opener, in arranging for the weight of his discussion after the 
 responding counsel's mouth is closed, is an " artifice " to which he appears to be 
 more oblivious than the court in the case of iNIoralcs vs. State, supra. The sim- 
 ple fact of two counsel being employed by the plaintiff is not the least excuse 
 for allowing a reply to be tortured into an opening. The distinctiveness of a 
 reply should be maintained to preserve the fairness and usefulness of judicial 
 discussion. The case of Tyre vs. Morris, supra, is decided correctly, and the 
 refusal of the court to permit a reply to be perverted into a second opening is 
 the only practice to rebuke the reprehensible trick of a partial opening. The 
 principle of compelling a complete opening cannot be sacrificed to mere con- 
 venience, and so far as the case of Barden vs. Briscoe, teaches any other doctrine, 
 it cannot be recognizcid. The discussion of the court is one-sided, and that on the 
 wrong side. The affirmative must be maintained by a convincing preponderance, by 
 open, fair and ingenuous proof, after a complete opportunity for full defence ; so that 
 if it turn out that the plaintiff makes out a case as consistent with the defence 
 as his recovery, he fails to make out a case, Whe^lton vs. Hardisty, 8 E. & B. 
 263 ; Cotton vs. Wood, 8 C. B. X. C. 568. 
 
RIGHT TO REPLY. 189 
 
 § 133. i^ccordingly, in the case of Ryniei' vs. Cook and oth- 
 ers,(^) which was an action of assumpsit to which the general 
 issue had been pleaded ; where, in order to prove part payment, 
 the defendants relied on the particulars of demand which had 
 been given under a judge's order, [Note — This was before the rule 
 of T. 1 "Will. IV., which requires the annexation of the particu- 
 lars to the declaration,] in which, the plaintiff had given the 
 defendant credit for certain sums paid, the plaintiff claimed a 
 right to reply, and contended that the particulars of demand 
 should be considered as evidence put in by the defendant of admis- 
 sions by the plaintiff, and that they could only become admissions 
 by the defendant's admitting the other side of the account ; and 
 per Pollock, B. : "I should have received evidence of the admis- 
 sion without proof of the judge's order, on proof of the hand- 
 writing of the plaintiff's attorney ; we may therefore withdraw 
 the judge's order altogether, and then this becomes merely an 
 admission, requiring proof as other admissions do : I am certainly 
 of opinion that it is the deiendant's evidence :" and (after consult- 
 ing Bayley, J.) allowed the reply. 
 
 § ] 34. It was commonly supposed, that in those classes of crimi- 
 nal proceedings in which a prisoner is allowed to produce evidence 
 of his having borne a good character previous to the time of the 
 supposed offence, and thereby endeavor to raise a presumption in 
 favor of his innocence, that this was not such a producing of evi- 
 dence as entited the prosecutor's counsel to reply ; at least it is 
 certain that such reply wfis seldom, if over, made in practice. But 
 the point has lately received a regular judicial decision in the 
 case of Rex vs. Stannard and otlicrs.(?/) Here the prisoners were 
 *87 indicted for robbery, and the ^opinion of the court was 
 
 (0 M & M.Efi. (M) 7C &P. H7.). 
 
 its establishment by proof; and having the burden of proof he ought to conclude ; 
 and it is also held that the proofs on the affirmative, in order to confer the reply, 
 must support them instead of negativing them, 5 City H. Eec. (N. Y.)63 ; Young 
 vs. Hayden, 3 Dana. 145 ; Vanzant vs. Jones, id. 464; see Hodges vs. Ackermau 
 11 Ex. 214 ; 24 L. J. Ex. 2.57 ; Chambers vs. Hunt, 3 Harr. (N. J.) 339. 
 
190 RIGHT TO REPLY. 
 
 asked whether the prosecuting counsel had a rioht to reply, as 
 the prisoners had only called witnesses to character ; and per Pat- 
 terson, J. : " I am very sorry this question has been raised, but if 
 I am driven to give an opinion, I must say that I think the coun- 
 sel for the crown has a right to reply where any witnesses are 
 called for the defence, whether to facts or to character. 
 
 § 13-5. I cannot in principle make anj- distinction between evi- 
 dence of facts and evidence of character ; the latter is equally laid 
 before the jury as the former, as being relevant to the question of 
 guilty or not guilty ; the object of laying it before the jury is to 
 induce them to believe from the improbability that a person of good 
 character should have conducted himself as alleged, that there is some 
 mistake or misrepresentation in the evidence on the part of the prose- 
 cution, and it is strictly evidence in the case (I) ," and Williams, 
 
 1. The presumption of a character of ordinary fairness, witli which the law for 
 the purposes of trial clothes a person accused of crime, is one to which he is 
 entitled, and which cannot be put in peril unless he, by introducing testimony in 
 reference thereto, elects to put it distinctly in issue, and on a trial of murder, 
 proof of the general character of the accused is not received, even on his own 
 belialf, the inquiry in such cnses being conlned, when pertinent at all, to the 
 general character as to the trait involved in the offence charged. People vs. Pair, 
 4H C'al. 137 ; and the State w'iU not be allowed to r„but the presumption of gen- 
 eral good character by evidence of particular facts ; the inquiry must be general 
 as to the trait involved in the indictment, Com. vs. O'Brien, 119 Mass. 342 ; 116 
 Mass. ?,:>{) ; so it will be seen that the presumption of good character must be 
 rebutted by facts, and evidence that the accused was in company of one commit- 
 ting the offence will not alter the presumption till participation is shown. State 
 vs. Parr., 33 Iowa 553. 
 
 Tl'he principle that evidence on the question of character by the defendant gives 
 the .State the reply is no doubt sound upon principle. It, however, has, in a later 
 cate (Reg vs. Dowse, 4 P. & F. 492) in England, been decided the other way 
 The true rule is, that proof of good character is admissible in all criminal prose- 
 cutions, not only where doubt e.xists on the other proof, but also to generate a 
 doubt, Williams vs. State, 52 Ala. 411 ; it is to be considered by the jury upon 
 the question of the credibility of direct evidence of his guilt, the same as upon 
 proof of cirunistances tending to show it, or the inferences to bo drawn from such 
 circumstances, Stover vs. People, 56 N. Y. 319 ; Remsen vs. People, 43 id. 6, 
 and any declaration of law otherwise is error; so the failure to call witnesses as 
 
RIGHT TO REPLY. 191 
 
 •J., said that " he concurred in that opinion, and that he had known 
 instances in which the right had been claimed, but not insisted 
 upon; in particular where it had been claimed against himself 
 when at the bar, and the attempt was put down, not by -duy decis- 
 ion against the right, but on the ground that it was not usual ; 
 that he had never known the claim persisted in ; and that he was 
 bound to say that in strictness it existed, though he should cer- 
 tainly recommend that it should not be exercised." (The counsel 
 for the prosecution then waived his right. 
 
 § 136. The reasoning of the two judges in this case seem per- 
 fectly unanswerable. What is evidence to character produced 
 for ? To persuade the jury that the prisoner is not guilty, because 
 from his previous good conduct he was not a person likely to have 
 •conimitted the oftenee imputed to him ; and what is this but giv- 
 ing evidence to rebut the case sought to be established on the 
 part of the prosecution, and therefore on every recognized princi- 
 ple entitling the prosecutor to reply? In addition, however, to 
 *88 the case *of Rex vs. Stannurd, a series of resolutions were 
 •entered into by the judges previous to the commencement of the 
 
 Spring- Circuit of 1837, in order to regulate the practice to be 
 
 • 
 
 to general good character raises no presumption of bad character, State vs. Docl^- 
 stader, 42 Iowa 436. The competency of evidence does not depend upon the 
 extent to which facts are proved theretiy, AVilloughby vs. Dewey, 54 111. 266, and 
 to be relevant it need not be essential, and is not to be tested by its convincing 
 chai'acter, but Ijv its tendency, Comstock vs. Smith, 20 Mich. 338. If the testi- 
 mony be relevant and competent, and it is actually before the jury, it is exclu- 
 sively their province to make their own application of it to the case in hand, 
 Allison vs. State, 42 Ind. 384; Salter vs. Myers, 5 B. Mon, 280; Mundine vs' 
 Gold, 5 Port. (Ala.) 215. But it must be evidence in law, as where, as in Geor- 
 gia, prisoners cannot testify in their own behalf, the introduction of the priso- 
 ner's statement does not give the State the reply, where the priscjuer offers no 
 evidence, Farrow vs. State, 48 Ga. 30. Evidence of good character is admissible 
 in civil actions, where the nature of the action involves the general character of 
 the defendant — or the nature of the defence that of the plaintiff — as where the 
 defence in an action on a policy insuring goods from fire imputes to the plaintiff 
 the removal of goods and setting the store on fire. Spears vs. International Ins. 
 <€<>.. 57 Tenn. ^79. 
 
192 RIGHT TO REPLY. 
 
 adopted under the statute of 6 & 7 Will. IV"., c. 114, whieli gives 
 prisoners charged with felony a right to ihake their full defence- 
 by counsel; one of which is as follows: "If the only evidence- 
 called on the part of the prisoner, is evidence to character, although 
 the counsel for the prosecution is entitled to the reply," it will 
 be a matter for his discretion whether he will use it or not. Cases- 
 may occur in which it may be lit and proper so to do." Vide- 
 those resolutions at length at the end of this volume. 
 
 § 137. In order, however, to entitle the opener to a reply, the 
 evidence put in by the opposite party, however trifling in itself, 
 must be evidence to the issue really and actually given by him.(l) 
 Thus previous to the rule made by the judges, H. -± Will. IV., 17,, 
 which ordains that the payment of money into court must in all 
 cases be pleaded, it was made a question whether the production, 
 by the defendant of a rule to pay money into court was sufficient 
 to give the plaintiff a right to reply ; in order to settle which 
 doubt, the Court of Common Pleas declared (Feb. 8, 1810) that 
 it was to be understood in future that it was to have no such. 
 
 1. In Trials per Pais 367, it is said: "In evidence, he -who affirms the matter 
 in issue ought first to make the proof to the jury, Litt. K. Hii ; Godb. 23 ; 3 Leon_ 
 162." In Coleman vs. Hage»man, 5 C. H. Eec. (N. Y.) 63, the judge said " that, 
 there was no doubt but that it was a general rule that the party holding the- 
 affirmative on the record, as in this case, had a right on the trial to open and 
 conclude before the jury ; but he thought it would be an utter perversion of 
 justice to suffer the defendant to deprive the plaintiff of that which is considered 
 an important advantage on the trial by interposing a plea, the allegation in. 
 which is expressly negatived by all the testimony. The spirit of the rule- 
 undoubtedly is that he who, lu truth, holds the affirmative, shall open and con- 
 clude. But here the defendant, for the mere purpose of gaining that advantage, 
 has put on the record a plea which is not supported by any evidence in the cause.. 
 His Honor ruled that the plaintiff's counsel might conclude before the jury.'' 
 
 When a defendant relies upon a legal objection, and calls evidence to support 
 it, the plaintiff's counsel having answered the objection, *he defendant is entitled 
 to be heard on the law in reply, Arden vs. Tucker, 1 M. & Rob. 191, as where- 
 the defendant, on being called on by the plaintiff to produce a document, inter- 
 poses with evidence to show that it is not in his possession, he is entitled to reply- 
 on the law to the court, but not a general reply on the case, as this is not a fact 
 for the jury, Harvey vs. Mitchell, 2 M. & Bob. 366. 
 
RIGHT TO REPLY. 193 
 
 eftect, as if theplaiutift" tooka verdict for the whole of his demand 
 without giving credit for the sum paid into court, the court 
 would set it aside witliout requiring evidence of the existence 
 of such a rule, 2 Taunt. 267. 
 
 § 138. Still, in the subsequent case of Crerar vs. Sodo, infra 
 § 154, the defendant j)ut in a rule for the payment of money into 
 court and the plaintiff was allowed to i-eply. Again in the case 
 of Dowling vs. Fiuigan,(.(,) which was an action for use and occu- 
 pation, two witnesses were called for the defence, to give evidence 
 of conversation which each had with the plaintiff, and which 
 *83 they *had both put down in writing. The first was asked 
 by the defendant's counsel to produce his memorandum, but had 
 not got it with him ; this question was not put to the second wit- 
 ness ; the plaintiff's counsel, in reply, observed on the absence of 
 the papers, and Avhen he concluded. Best, C. J., called up the sec- 
 ond witness and asked for his ; the witness handed it to the judge, 
 who inspected and gave it to the plaintiff's counsel, telling him 
 that he might read it or not as he thought proper, to ivhich the 
 other replied that he had no wish on the subject, but claimed a 
 right to address the jury on this new piece of evidence ; but Best, 
 C. J., said: "Either party might have called for this paper; 
 neither have done so, and it is for the satisfying the conscience of 
 the judge that it is asked for now. I never knew of a counsel 
 making a second speech on such an occasion, and I cannot allow 
 it ; I should be subverting the practice of the court." 
 
 § 189. And in the case of Pullen vs. White,(y) which was an 
 action of assumpsit, and a ledger and cash-book had been refer- 
 red to, to refresh the memory of a witness for the plaintiff, who 
 used only parts of them to support the case, the defendant's coun- 
 sel, in his address to the jury, observed on the general state of 
 the books and the mode in which the accounts were kept, and 
 referred to other parts besides those used by the plaintiff's wit- 
 ness ; and per Best, C. J. : " On this the plaintiff cannot reply, 
 the known rule is against it." 
 
 § 140. But if the defendant, prisoner, or party to be heard 
 
 (X) 1 C. & p. 587. (J/) 3 C. & v. m. 
 
194 RIGHT TO REPLY-. 
 
 second, chooses to rest his case on the facts already put in evi- 
 ■dence on the opposite side, or thinks he can, by his speech, induce 
 the jury to believe that the witnesses who depose to them are 
 unworthy of credit, and that neither tenders any fresh evidence 
 to the issue, nor states in his speech any new facts bearing on the 
 -question, then the opener is, by the existing practice, clearly not 
 =*90 entitled to reply. The *reason assigned for not allowing 
 him to do so is, that as the party who began has, in his opening 
 speech, had an opportunity of commenting upon his own evi- 
 dence, which he was about to produce, and as the opposite party 
 has given none on his side, but merely commented upon that of 
 the opener, the latter, who has already observed upon it, has no 
 right to be heard twice, inasmuch as when the defendant does 
 •call witnesses, he is only heard the second time, owing to his 
 ignorance, in the first instance, of the nature of the evidence 
 which will be adduced on the oilier side. The correctness of this 
 reasoning may, to a certain extent at least, bo questioned, since 
 the opener has only had the opportunity of commenting upon 
 •evidence which he supposed, or was led to believe from his instruc- 
 tions, would be given, but which often turns out very different 
 from what was expected, while the respondent's counsel has the 
 ^advantage of making a speech with all the evidence in the case 
 before him, and the certainty that no more can be given. It is 
 not, however, requisite to enter further into the disciTssion of this 
 ■question ; it is enough for our present purpose to know that the 
 practice in question is quite clear, and fully established. (1) 
 
 1. The presiding judge is no longer required to submit a case to a jurj- merely 
 ■becavise some evidence has been introduced by the party having the burden of 
 proof. The modern rule is that there may be, in any case, a preliminary ques- 
 tion for the judge, whether there is any evidence upon ■which a jury can properly 
 proceed to find a verdict for the party producing it, upon whom the burden of 
 proof is imposed, Eng. L. E. 2 Priv. C. App. 335 ; 14 Wall. 448 ; 22 id. 120 ; 11 
 Hosv. 373 ; 10 Wall. 637 ; 9 id. 201 ; 4 Otto 278 ; 9 id. 676, 578. This question 
 is usually invoked by a motion in the nature of a demurrer to the evidence, ante 
 -^. 85. It being purely a question of law, the party moving will be entitled to 
 reply. If error be assigned, the rule is that the demurrant, or party moving, must 
 
RIGKl TO REPLY. ] 9S 
 
 § 141. An exeeptiou, however, exists iu the case of State- 
 prosecutions, where it is admitted that the attorney-general, when* 
 prosecuting for the crown, or appearing in his official capacity^ 
 has always a right to reply, even though the defendant or pris- 
 oner calls no witnesses.(^) And this is allowed even on the trial 
 of collateral issues,(a) and in revenue prosecutions in the exchequer^ 
 That this is a matter of prerogative appears very clearly frorch 
 some comparatively recent cases. In Rex vs. Marsden and oth- 
 ers,(^) which was an indictment for a libel in a newspaper, and 
 the indictment charged that the defendants intending to traduce- 
 *91 and vilify the prime *minister of the day, and to cause it 
 to be believed that he was guilty of disloyal intentions, &c.,. 
 against the king and to bring him into hatred and contempt, &c., 
 published the libel in question. No witnesses were called for the- 
 defence, and on the attorney-general's rising to reply, it was 
 objected, b}'- the prisoners' counsel, that this was a private prose- 
 cution instituted by the prime minister, and not a public pro- 
 ceeding on behalf of the crown. The attorney general then stated 
 that he appeared in his official character; and per Lord Teuder- 
 don : " There is no doubt of the rule ; whenever the king's coun- 
 sel appears officially he is entitled to reply." The very same day 
 was tried the case of Rex vs. Bell,(c) which was a criminal infor- 
 mation for a libel on the Lord Chancellor; the attorney-gene- 
 ral conducted the prosecution, who stated that he appeared as the 
 counsel and private friend of the prosecutor, and, no evidence 
 having been offered for the defence, he did not reply. 
 
 § 142. It is sometimes said that this is a peculiar privilege,, 
 coulined to the attorney-general, or at most to him and the solici- 
 
 (z) Bex vs. Hornn, 20 How. St. Tr. 6S3. (ft) M. & M, 439. 
 
 (a) Kex vs. Katenffe, 1 W. Bla. 3. (o M. & M. i.J9. 
 
 prepare the paper-book and bring on the cause ; and there is no danger of delay,, 
 since, by the rules of the court, the opposite party may also give notice of bring- 
 ino- on the cause, and may have ju'Jgment by default, iu the same manner as if it 
 was a case after a verdict, if the party demurring does not deliver the paper-books 
 and move to bring on the cause pursuant to his notice, Littlefield vs. Storey, 3- 
 Johns. 426. 
 
196 EIGHT TO REPLY. 
 
 tor-general; and in the case of Rex vs. Earl of Abingdon, (cZ) 
 which was an information against the defendant for a libel on an 
 attorney, and after the defendant had addressed the jury, the 
 counsel for the crown claimed a reply ; Lord Kenyon said : 
 " Though the attorney-general had undoubtedly that privilege, 
 3^et he never knew any other counsel for the crown to claim it, 
 and he would not make the precedent in the case before him." 
 It is, however, mentioned by the reporter, in a note to that case, 
 that in Rex vs. Smith, which was tried M. 37 Gr. Ill, where a 
 party was indicted for libel, and called no witnesses, Lord Ken- 
 yon permitted the prosecuting counsel (not the attorney-general) 
 to reply, although Rex vs. Abingdon was cited. (1) 
 
 1. Martin, B, in Reg. vs. Christie, 1 P. & P. 75, intimated tliat he thought the 
 I'ight of reply on behalf of the crown a bad practice, and that he should confine 
 the right to the attorney-general of England in person. The right was practi- 
 cally denied in Reg. vs. Burton, 2 P. & F. 788 ; Reg. vs. Blackman, 3 0. & K. 
 330 ; 6 Cox C. C. 333 ; Farrow vs. State, 48 Ga. 30 ; Heffron vs. State, 8 Fla. 
 73 ; and where no evidence was offered by defendants in mint cases it was refused, 
 Reg. vs. Taylor, 1 P. & P. 535 ; it is refused the attorney-General for the county 
 palatine, though prosecuting in person, Reg. vs. Christie, 7 Cox, C. C. 506 ; and 
 in a prosecution directed by the poor law board, counsel cannot claim the right 
 to reply where the prisoner calls no witnesses, Reg. vs. Beclcwith, 7 Cox, C. C. 
 505. 
 
 Rule IX., in Philadelphia Com. Pleas, is : " After the evidence in a cause on 
 trial is closed (except in capital cases), neither party shall be entitled to address 
 the jury by more than one counsel. If evidence has been received on behalf of 
 each party, the counsel having the right on the pleading to begin shall sum up ; 
 one of the opposite counsel may then address the jury, and afterwards the coun- 
 sel who commenced summing up may conclude. When the party not entitled to 
 begin shall produce no testimony, the counsel of the other party shall be con- 
 fined to his address in summing np, and shall not be heard in reply." 
 
 But the State will have the reply if there be any evidence for the defendant, 
 as where there are several prisoners, and they sever in their defence, if one should 
 call witnesses and the other not, the right of reply is in practice confined to the 
 case against the prisoner who has called witnesses, Reg. vs. Burton, supra ; so 
 where two were indicted for night poaching, the defence being on a question of 
 identity, one of them calling witnesses to prove an ah'bt, the other calling no 
 witnesses, the counsel for the prosecution was allowed a general reply on the 
 
 (d) 1 Feik's Ca. 2?.i). 
 
RIGHT TO REPLY. 197 
 
 § 143. And the expression of Lord Tendenden, already quoted 
 -*92 in Rex vs. MarBden, that "wherever *the king's counsel 
 appeared officialbj, he is entitled to reply," seems to show that it 
 is a matter of prerogative, and not attached to the person of any 
 individual. And lastly, it is one of the resolutions of the judges 
 already alluded to that " In cases of public prosecutions for felony, 
 instituted by the crown, the law officers of the crown, or those 
 loho represent them, are in strictness entitled to the reply, althousch 
 no evidence is adduced on the part of the prisoner. Vide % 162. 
 
 In cases of impeachment before the House of Lords, the man- 
 agers for the Commons enjoy the same privilege in this respect 
 as the law officers of the crown, namely, to reply, even though 
 thepai-ty impeached call no witnesses -^ which privilege they have 
 occasionally exercised. (e) 
 
 § 144. The third predicament, however, still remains to be 
 considered, viz., when the defending part}', although he calls no 
 witnesses and gives no evidence, yet states in his speech to the 
 jury some facts or circumstances, or reads some paper connected 
 with the case not already in evidence, and which he declines to 
 prove in the regular way. It is frequentl}' said, and pretty gene- 
 rally believed, that such conduct gives the counsel who began a 
 
 (e) Per Lord Mansfleld, Eex vs. Home, necnssarily entitled to the final reply. 
 
 •20 How. St. T. fi62; Lord Wintown's case, tlioagli the crown is the real litigant 
 
 1.J St. Tr. 864. It is now settled that the party, O'Connell "vs. Reg, (in error,) 11 C. 
 
 counsel for the crown, where the crown & F. 155; 9 Jur. "2). 
 is the defendant, in u writ of error, is not 
 
 whole case as against both, Eeg. vs. Briggs, 1 F. & P. 106 ; and where A. was 
 charged with carnally knowing and abusing a girl under ten. B. was charged 
 with being present and aiding and abetting. A's counsel called no witnesses ; B. 
 who had no counsel, called a witness to prove an alibi for A. Hdd, that the evi- 
 dence was in effect evidence for A., and that, in strictness, the counsel for the 
 prosecution had a right to reply on the whole case, bnt that it was summum jus 
 and ought to be exercised with great forbearance, Reg. vs. Jordan, 9 C. & P. 118. 
 But it is held that a State's attorney in public prosecutions, is entitled to the 
 close, although the prisoner offers no evidence in State vs. Millican, 15 La. Ann 
 .577 ; Davis' case, 1 Graft. (Va.) 557 ; U. S. vs. David Bates, 2 Oranoh, 0. C. 
 405, according to the practice in Reg. vs. Gardner, 1 C. & K. 628 ; Eeg. vs. 
 Tockley, 10 Cox C. C. 406 ; Reg. vs. Barrow, id. 407. 
 
198 ilKSHT TO REPLY. 
 
 right to reply, although.it is not usual to exercise it ; but if this 
 opinion be tried by the. two legitimate tests of principle and author- 
 ity, it will be found to be at least questionable, and as the ques- 
 tion is one of considerable importance, we will give the argu- 
 ments and authorities on both sides. 
 
 § 145. In favor of the right it is contended, that a counsel,, 
 by stating fresh circumstances relative to the matter in issue, and 
 still more by reading to the jury any important paper not already 
 in evidence, enters substantially into a new case, which, as the- 
 *93 opener had no notice of, he could not *have anticipated in 
 his first speech, and therefore, on the general principles above- 
 laid down, should be allowed to speak in reply to it. That 
 it is quite clear that if the defendant's counsel, in the 
 course of his speech raise a question of Icnc, or cite a case of 
 which no mention had been previously made, that the plaintiff's 
 counsel is entitled to remark on that case and answer the objec- 
 tion of law, as he was not previously heard upon it ; and there- 
 fore by analogy, that if, instead of fresh matter rf laio, the defend- 
 ant's counsel introduces into his speech fresh matter of fact, the 
 plaintiff should, on the same principle, be allowed his reply. 
 
 § 146. That a counsel, by reading to the jury a paper whicb 
 he afterwards refuses to put in evidence, is guilty of malafideSf 
 and of an attempt to impose upon their understandings ; and as 
 jurymen are not learned in the law, and cannot see the distinc- 
 tion between what has been technically made evidence and what 
 has not, they would naturally form their verdict as much from 
 the facts thus stated, as from others which have been more regu- 
 larly proved ; and therefore, that it is but common fairness to the 
 party who began, as well as a just punishment to the other for 
 his misconduct, to allow a reply in order to prevent their being- 
 misled and justice defeated. (1) 
 
 1. In Naish vs. Brown et al., 2 Car & K. 219, Pollock, C. B., said : " The right 
 to comment by way of reply on statements of fact made by counsel for the 
 defendant, when no evidence is adduced, is not an absolute right, but only sub- 
 ject to the opinion of the court, I think you have not that right. The object of 
 
KT(!11T TO KEWA". 199 
 
 5J 14:7. Thiit not only is the _^eneral opinion of tlic profession 
 in favor of the existence of this right, but it has been expressly 
 vecognized and allowed in the following cases. In Kex vs, 
 Horne,(_f) L. Mansfield said : " If he {i. e., the defendant) were to 
 throw out to the jury to catch and surprise them allegations of 
 fact, which he called no witness to prove, then the counsel for the 
 plaintiff may set the jury right, and lay them out of the cause, 
 and show that they are absolutely irrelevant and immaterial." 
 In Eex vs. Bigno]d,(^) which was an indictment for perjury, and 
 *94 at the trial, after the case for the prosecution *was closed, 
 the defendant's counsel addressed the jury, and in the course of 
 his speecia read some resolutions which had been passed, and 
 stated some facts which he conceived material to explain the 
 defendant's conduct, &c , but declined produciiig them in evi- 
 dence or callino; unj witnesses : Abbott, C. J., permitted th-e prose- 
 cutor's counsel to reply on principle, and on the authority of a 
 case which had been tried before Lord Ken^x))), where a defend- 
 ant's counsel read an advertiseniout from a paper, and afterwards 
 declined putting it in evidence; and now in banc laid down 
 (obiter) as a general rule, that when "counsel for the defendant 
 opens facts on the merits of the ease, and declines calling wit- 
 nesses to those facts, counsel for the jiroseeufiov h'(S a fajhi af general 
 ri'phi, because the statement of facts and circumstances unsup 
 
 (/) 20 How. St. Tr. eO-2. ia) 4 D. & R. 70. 
 
 the rule i.^ to rhcck the sktd-mi nts of nuniscL Ju my expcrioiire, where a fact 
 ha.s been opened and u witness has turned out to lie hoini fidr absent, there has 
 been no reply allowed. In my opinion the rule is always subject to the control 
 of the judge. Tlic object of the rule is to take care that injustice shall not be 
 done by fact.s being improperly opened when counsel have no intciilion of prov. 
 ing them." Sec Keg vs. Buther, 2 M. it Kob. '-'28. 
 
 Counsel have a right to cuncct misrepresentations of the evidence made by 
 counsel in argument ; and it is irregular for the court not to permit tlie correction 
 to be made by recalling the witne^s, if in court, or referring to the testimony 
 required to be taken down, in cases of felony, Long vs. State, 12 Ga, 203. The 
 argument .should be based upon controverted facts of the issue ; so where a 
 demurrer to a plea is sustained, defendant's counsel cannot comment (in the facts 
 contained in that plea as admitted, Iiijiram vs. r.awson, 2 M. it Roll. 25.'!. 
 
 14 
 
200 KIGUT TO KEl'liY. 
 
 ported by evidence could not but have an effect on the minds of 
 the jury." Bayley, Holroyd, and Best, JJ., were present, say* 
 the report, and did not dissent from this ruling. 1^. B. — Neither 
 did they assent, the point not beins; before the court for its 
 decision. 
 
 § 148. And in Rex vs. Carli8le,(A) who was tried for a misde- 
 meanor, and defended himself in person : at the close of the case 
 against him, he was informed by the counsel for the prosecution, 
 that if he (the defendant) called any witness, or read any paper 
 not already in evidence, a reply would be claimed : and per Park, 
 J. : '• I had a similar case at Warwick, where a person defended 
 himself; and I gave him warning, that if he called a witness, or 
 read ans- letter or paper not already in evidence, or opened new 
 facts which were not proved, the counsel on the other side would 
 have a right to reply." 
 
 § 149. In answer, however, to all this, it is to be remarked,, 
 that all the foregoing decisions were cases of criminal proceed- 
 ings, and the general observations of the judges in some of them,. 
 *95 that this riffht always exists, must, therefore, *be considered 
 ■AS mere dicta ; and, allowing those decisions their full weighty 
 the}^ only show that the rule holds in criminal cases,'and not go- 
 the length of establishing its recognition at nisi pmis, especially 
 as we shall show, presently, that the nisi prius authorities are the 
 other way. That in answer to the argument deduced by analogy 
 from the plaintiff's counsel being permitted to reply on matter of 
 law, it is to be remembered that that does not confer on him a 
 right of general reply, but only the right to_reply to the fresh 
 matter of law thus adduced ; so that allowing the analogy to its 
 fullest extent, it only proves that a right of reply ought to be 
 allowed upon the new facts thus introduced into the case, and 
 not a general reply as here claimed. (1) 
 
 § 150. But in truth no analogy exists ; matter of law is 
 addressed to the court, which, for the purpose of informing and 
 guiding its own judgment, will hear both parties upon it, Avhile 
 matters of fact are to be decided by the jury, and it is about 
 
 (ft) 6C.&P. 636. (1) See cm(e p. ISO. 
 
RKillT TO REPLY. liOl 
 
 them we are now corisiderino;. That in answer to tlie urgaitiont 
 that a statement of facts unsupported by evidence must mislead 
 a jurj^ we may rumember that the jury is sworn to decitle by the 
 evidence ((/n//, ; und tliat, instead of [iormitting a reply to facts 
 improperly introdnced in a counsel's speech, and thus Ibllowing 
 up one irregularity by another, it is the obviovs duty of the judge 
 to inform the jury that those facts are not legally before them in 
 evidence, and that consecpiently it is tlieir duty to disregard them 
 altogethei-. 
 
 § 151. And here, it is to be observed that tlie new facts thus 
 stated by the respondent's counsel may belong to one of three 
 classes : — 1. They may be such that appear I'rom their very state- 
 ment to be incapable of proof by the party advancing them. 2. 
 They may be such as are, for all that appears to the contrary, 
 capable of proof bj' the responding counseh 8. They may be not 
 only obviously capable of proof, but the proof be in the counsel's 
 *96 ^possession ; as when he reads a paper, letter, Ac, to the 
 jury. Xow, with respect to the first of these three classes it has 
 been held, that to state facts which are, u[ion the very face of 
 them, incapable of proof, is irregular, and ought not to be allowed, 
 and that it is the dut\' of the judge to stop any statement of the 
 kind. 
 
 § 152. Thus in the case of Stephens vs. Webb,(i) which was 
 an action of assumpsit on an undertaking to pay money, to which 
 the pleas were — first, non-assumpsit ; and, secondly, that the 
 undertaking was obtained by fraud and covin. It appeared that 
 E. C. "W., brother to the defendant, had been in custody on a ea. 
 sa. to plaintiff for £35, on which occasion the defendant gave the 
 undertaking to pay. A clerk to the plaiiitift''s attorney was called 
 as a witness, who spoke as to a conversation between himself and 
 the defendant, no one else then being present ; defendant's counsel, 
 in his speech, was proceeding to state an account that the defend- 
 ant had given of that conversation, which differed from that 
 already in evidence, and contended that he had a right to state 
 the account which his client had given of the transaction: eed 
 
 H) 7 0. & P. 60. 
 
202 RKIHT To HEPI.V. 
 
 per I'lirke, B. : "' You liave no right to open ad tiict.s any matter 
 which you- cannot prove ; it is often done, but it is irregular." 
 
 § 153. But when the facts stated are such that it does not 
 appear whether the counsel stating them has the means of proof 
 in his possession or not, and he refuses to adduce any evidence to 
 establish thera, it is clearly the duty of the judge to instruct the 
 jury to pay no attention to them; and should the jury, in con- 
 travention- of their oaths, allow themselves to be influenced by 
 such statement, the verdict would certainly be set aside as against 
 evidence ; it being a principle that the mere statement of coun- 
 sel, unsupported by evidence, is to go for nothing. But where, 
 in the third case we have supposed, a counsel shows, by his state- 
 *97 meat, *that he has the means of proof in his possession, as, 
 for instance, in E.. vs. Biguold, where he actually read a particu- 
 lar document to the jury, but afterwards refused to make it evi- 
 dence in the regular way; here is malnfldes, at least, and cases 
 may occur where the ends of justice require that a reply should 
 be made. Still, however, it is submitted that such reply cannot 
 be claimed as a matter of right, although we are warranted, both 
 on principle and authority, in concluding that a power is vested 
 in the judge at nisi prius in his discretion to permit it. 
 
 § 154. This view of the question is strongly supported by 
 some decisions at nisi pri)is. In Crerar vs. Soda,(/t) which was an 
 action for work and labor as an accountant, to which defendant 
 pleaded the general issue, and his counsel opened facts which he 
 called no witness to prove, and then contended that the plaintiff's 
 counsel had no right to reply, unless he admitted the 
 facts stated as proved, sed per Lord Tenderden : " If the 
 defendant's counsel refuse to call witnesses to establish the 
 facts they have undertaken to establish, the judge may, in 
 his discretion, permit a reply ; but as to the strict right, the 
 practice is clearly against it." And it is particularly to be observed 
 that this was the^same judge who presided in R. vs. Bignold, 
 {supra % 147,) while Crerar vs. Sodo is three years later. And 
 again, in the more recent case of Faith vs. M'Intyre,(;) which 
 
 {k) M. & M. 85 ; 3 C. & P. 10. (?) 7 0. & P. 44. 
 
RIGHT TO KEPLT. 203 
 
 was an action of assumpsit by the indorsee against the acceptor 
 of a bill of exchange (for the phiadings, vide supra §. 77,) and the 
 defendant began, the plaintifl^'s counsel cross-examined one of 
 his adversary's witnesses, and proved by him the handwriting of 
 a letter which plaintiiF's counsel then read in his address to the 
 jury, but did not otherwise put in evidence; and on +he defend- 
 ant's counsel claiming a reply, Parke, B., said : "I do not think 
 *98 you ought '^to reply. I never knew an instance of the oppo- 
 site counsel actually replying after his opponent had opened facts 
 which he did not prove." 
 
 § 155. Defendant's counsel then argued that tlie cases admit- 
 ted of this distinction, that sometimes a counsel or party wandered 
 into a statement of facts, but Avithout stating any specific piece 
 of evidence, and that then, in point of actual practice, the opjK)- 
 site counsel did not in fact reply ; but that in this iiiisij a docu- 
 ment had been read, and the jury been put as mucli iii possession 
 of its contents as if it had been read in evidence, while the 
 defendant's counsel had not objected, as it was fully expected 
 from the handwriting having been proved that the other party 
 intended to give it in evidence. Scd per Parke, B. : ''I have 
 often heard it threatened, that if a <'0unself or party ojK'iied new 
 facts, the opposite side would have a riglit tn reply : but 1 never 
 knew such a reply actually made. Perhaps a-^ the •■onnsel lias 
 proved the document, and read it to the jury, be onglit in yood 
 faith to put it in ; but I certainly never knew an -rif^tahce of a 
 reply on a mere opening." 
 
 § 156. It will be remarked that this last case goes; a step beyond 
 the point in question, as the plaintiff's counsel not only read the 
 paper to the jury, but actually proved its genuineness by one of 
 the witnesses called on the other side. It seems, thci-ofore, (pies- 
 tionable, whether Faith vs. M'Intyre <'an be supported to its full 
 extent ; and the principle laid down by Lord Tendcnlen, in Crc- 
 rar vs. Sodo, seems to be the true rule in thjs respect, so i'-.u- as 
 nisi Ill-ins is concerned, although we may collect from tlu- twc 
 cases last cited that the jierniission to reply who»i only liul'- are 
 
■204 RKSUT TO RKPLY. 
 
 •stated is u it likely to bo granted, exce])t in the case of some spe- 
 cific paper being read to the jury, and afterwards declined to be 
 put in evidence. With respect to criminal cases, although the 
 *99 authorities, as shoivn above, *seem pretty uniform in favor 
 of granting the reply, yet as the question does not seem to have 
 been directly raised in any of them, whether that reply could be 
 assumed as a matter of right, or was grantable at the discretion 
 of the judge; and as it is not easy to see any distinction in prin- 
 ciple between civil and criminal proceedings in this re8pect,(l) it 
 may lie very well questioned whether the allowing a reply on the 
 mere statement of facts by the opposite party is not, in all cases, 
 discretionary with the judge. 
 
 § 157. It has been shown in the preceding chapter, that when 
 the plaintiff has notice, by pleading or otherwise, of the defence 
 intended to be set up, he may either go into the whole case in 
 the first instance, and not only establish his own, but give evi- 
 dence to rebut the intended defence ; ?n) or he may content him- 
 self with establishing n prima facie case, and reserve his evidence 
 in reply till that of the defeiid.mt has been closed. If he choose 
 the latter course, and the defendant, besides bringing evidence to 
 impeach the j^laintiff's case, sets up an entire new case, which 
 again the plaintiff controverts by evidence, the defendant's coun- 
 sel is intitled to a sjxyial reply ; which, as he has already had an 
 opportunity of commenting on the prima facie case of the plam- 
 tiff, must be confined to the new one set up by him ; and then 
 tVie plaintiff is entitled to the general reply.(«) Thus in Meagoe 
 vs. Simnions,(o) which was an action of assumpsit by the indorsee 
 against the acceptor of a bill of exchange, to which the defend- 
 aiat pleaded usury, plaintiff opened and proved the bill ; defend- 
 ant then opened his ease of usury, and called his witnesses to 
 establish it ; witnesses were then called by plaintiff in reply to 
 disprove the usurj^ ; and then a witness by the defendant to con- 
 tradict what one of the plaintiff's had said. Defendant then 
 *100 replied on the evidence *givea in reply, and on the contra- 
 
 (m) Seo pp.81, SI. 8,;, 1 :4, 135, ante, (n) 1 Stark. Ev,:8l; Eo3Coe on Ev. 100; ante p. 186. 
 . - . (0) :;C. & P. 7.5. 
 
 1. !^ce iv/fn ]i. 'lUn. 
 
KIGUT TO IIEPIA'. 205 
 
 diction given to a [lart of that evidence, and tlie plaintitt' made 
 A general reply. 
 
 § 158. In the case of Goodtitle vs. Braham.(o) which was an 
 action of ejectment tried at bar, the lessor of the plaintiff" claimed 
 as heir at-law ; the defendant as devisee of the person last seized ; 
 a question arose as to who was entitled to the general reply ; and 
 per Curiam : "If the plaintiff' proved his pedigree and stopped, 
 and defendant set up a new case, which the plaintiff' answered by 
 •evidence, which ultimately went to the jury, the defendant shall 
 have the general reply : and Buller, J., said " that he had so ruled 
 it in the cause of Doe vs. Hicks, summer assizes, 1789." This, 
 however, is a decision which it seemed impossible to defend on 
 any principle ; indeed, it is said by some that the case is misre- 
 ported ; the right to reply in ejectment is governed by the same 
 .rules'as in any other action. Viilc the cases given fvpra, § 100. 
 § 159. And the case of Goodtitle vs. Braham was at last over- 
 ruled by Doe d. Pile vs. Wilson. (^)) There the plaintiff' claimed 
 ;as heirat-law of C. L.,and defendant as her devisee, she, although 
 ii feme corcrfc, havhig power under her marriage settlement to 
 make a will. The plaintiff"'s title not being admitted, some evi- 
 ■dence was given of his heirship, and of payment of rent to C. 
 L., on which defendant admitted that a prima fade case had been 
 made out, and, having proved the will, called for the settlement, 
 which Avas produced. On this the plaintiff" called a witness to 
 prove that the testatrix was not sound of mind at the time of 
 -making the will. On this, defendant claimed a general reply, and 
 ■cited Goodtitle d. Revett vs. Braham, which, however, was dis- 
 allowed by Denman, C. J., who said " that in order to entitle a 
 defendant to the general reply, he should admit the entire prnix/ 
 facie case of the plaintiff", which he had not done in the present 
 ^ nstance. 
 
 §160. At quarter sessions the same practice prevails: if the 
 ■respondent begins and the appellant afterwards calls witnesses, 
 to disprove whose testimony the respondent calls others, the appel- 
 
 (0) 4 T. E. m. I PI C C. & p. ;!01 : I M. & U. 3ii. 
 
206 RIGHT TO KEPLY. 
 
 lant has a right again to address the court, coutiiiing his obser- 
 vations to the testimony of the fresh witnesses, and then the 
 respondent has a right of general reply.(g') If the appellant begins, 
 the same practice is observed, mutatis mutandis. 
 
 § 161. We have likewise seen (chap. 2 p. 126-7 ante,) that where 
 there are several issues, the onus of proving some of which lies. 
 on the plaintiff and others on the defendant, the plaintiff" is 
 always entitled to begin ; and the practice is for h'im to do so, 
 and prove such of the issues as are incumbent on him ; the defend- 
 ant then does the same ou liis side ; afterwards the plaintiff is 
 entitled to go into evidence to controvert the defendant's affirma- 
 tive proofs ; the defendant is then entitled to a special reply on the 
 fresh evidence in support of liis own affirmative, and then the 
 plaintiff has a general reply. (r) 
 
 § 162. If, as has been already alluded to (§ 145, ante), the 
 responding counsel, in his address to the jury, raise any point of 
 law or cite any case, the other side will be allowed to reply to the 
 point of law, or observe on the case cited, without touching on 
 the facts in question (1) Thus in Arden vs. Tucker,^s) whicii was- 
 an action of assumpsit, and the plaintiff having begun, the- 
 defendant opened for a nonsuit, submitted that the action could 
 not be supported, and, having cited some cases, called witnesses, 
 to establish the facts ; this having been answered by the plaintjff 's. 
 counsel, the defeidant claimed the right to i-eply ; and per Lord 
 Tenderden: " The defendant having raised the objection, which 
 *101 was one of law, and the plaintiff" *having answered that 
 
 (5) Arcli. Q. S 2.). {»■) 1 Stark. Ev. 382; Eos. Civ Bv. 1G:S. is) 1 M. & R. 191. 
 
 1. Upon a question of law addressed to the court, it is discretionary whethei- 
 they will hoar an argument, Howell vs. Cora., 5 Gratt. G(!4. 8eo ante p. 117. 
 The objection of a witness to a question which he considers himself not bound to. 
 answer, is not a point on which counsel are heard, Rex vs. Adcy, 1 M. k R. 94, and 
 the witness may claim or waive his privilege as he sees fit, Thoma.s vs. Newton^ 
 M. & M. 48, and he may claim this at any part of the inquiry, and that he does. 
 not waive it altogethfer by omitting to claim it as soon as he might have done so. 
 R. vs. Garbett, 1 Den. C. C. 258, overruling East vs. Chapman, M. & i[. 47 ; and 
 S. C. 2 C. & P. 573, and the time for the witnes.s to make the objection is aftei- 
 he is sworn, Boyle v,^. Wiseman, 10 Flxch. f)47. 
 
RIGHT TO REPLY. 20 ( 
 
 objection, the defendant's counsel is entitled to be beard on mat- 
 ter of law only in reply." 
 
 ^ 163. And in Power vs. Barham,(r() which was assumpsit on a. 
 warranty of four pictures, to which the defendant pleaded non- 
 assumpsit, and in his address to the jury his counsel cited a case,. 
 on which the plaintiff claimed a right to observe on the case so- 
 cited ; per Colerige, J. : " He was entitled to do so if he thought 
 proper.(l) 
 
 § 164. If, also, as frequently happens in the course of a trial,, 
 an objection of law or a question as the admissibility of evidence 
 be raised, it is said that in strict practice all the counsel on the 
 side of the party making the objection are entitled to be heard 
 ujpon it ; then all those on the other side against it, while th-2 
 leading counsel only of the party who started the objection is to 
 be heard in reply. However this may be it is certain that if a 
 counsel makes an objection of this description, which his adver- 
 sary answers, he is entitled to reply. And in the case of Fairlie 
 vs. Denton,(6) where in the course of the case the defendant's coun- 
 sel took an objection, which was answered by the counsel on the 
 other side, but in i-eplying on the objection the defendant's coun- 
 sel cited a case. Lord Tenderdon said : " As a case has been cited 
 in replying on the objection, I think the plaintiff's counsel has a 
 right to observe on that case."(2) 
 
 1. The part}' who merely refers to cases in his oponing- arguniont, without reiul- 
 iug, is understood to acquiesce in such authorities uot being read, and unless they 
 are read by the opposite side he is not strictly entitled to take them up again. 
 Cutter vs. Thomas, 24 Vt. 647. 
 
 2. If defendant's counsel goes for a nonsuit on a point of law, and the plaintiff's 
 counsel answers it, the defendant's counsel has a right to reply on the law only. 
 Ardeu vs. Tucker, L M. & Eob. ; ShotweJl vs. Malt, 38 Barb. 445, 192. 
 
 The party making a motion is to go forward with the argument, Tarbel vs. 
 White Kiver Bank, 24 Vt. 655 ; but if the motion is in the nature of a rule, nisi,. 
 with a, prima facie case made against the party showing cause, ho is entitled to- 
 close, Boyce vs. Burchard, 21 Ga. 74. 
 
 The burden is on the plaintiff in error to allege, by proper averments, and 
 
 prove errors on which he relies, Shedman vs. Holman, 33 Miss. .").')0; Courtwright 
 
 vs. Slaggers, l-> Ohio St. 511; O'Keely vs. Territory, 1 Oreg. 51 : I'arsons vs. 
 
 Bnrney, 15 Te.x. 272. 
 
 (a) 7 C. * P. .■;:is. (h) :■■ id. Ki.i. 
 
308 RIOIIT TO KEPl.Y. 
 
 THE FOLLOIVI.VG CASE [Rcgiis. H'eii, 4 F. Sy F. bSf) IS IiV-if.RTEn FOR THE USEFUL 
 LESSON IT SUGGESTS: 
 
 The pi-isoner was charged with burglary at Chaddiagstone, on the llth of 
 -Vugnst. 
 Bari'ow for the prosecution; 0. C. Addison for the priaonor. 
 At the close of the case on the part of the prosecution, aui AdJisoii having 
 lintimated that it was not his intention to call witnesses, Barrow proceeded to sum 
 •up the evidence in accordance with the provisions of a recent Act of parliament. 
 Addison having addressed the jury on behalf of the prisoner, MiUor, J., at the 
 ■commencement of his charge to the jury, called their attention to the fact that 
 this was the first case during this Assize in which the counsel for the prosecution 
 had availed himself of the privilege conferred by a recent Act of parliament, of 
 ■summing up the evidence when no witnesses were called on the part of the defence. 
 His Lordship observed that he quite agreed with the opinion which he recollected 
 to have been entertained by his late brother Crompton, a judge of great learning 
 and wisdom, that the Act of parliament which conferred the privilege would turn 
 ■out to be beneficial, or otherwise, according to the manner in which counsel 
 availed themselves of its provisions. His own opinion certainly was, that if the 
 ■effect of the act was to assimulate in all respects the criminal and civil modes of 
 procedure, nothing could be more lauuntable; in cases usually tried at nisiprius, 
 -counsel were in the habit, to a certain extent, of identifying themselves with the 
 interests of their clients, and it was their duty to struggle hard in their exertions 
 to obtain a verdic't ; but in criminal cases this ought not to be the feeling of the 
 ibar. 
 
 The Act which had been passed was intended to operate as an aid to the admin- 
 istration of justice ; but if improper use was made of it he feared it would turn 
 ■out otherwise. 
 
 Again, in Eeg. vs. Bervens, et als., 4 F. & F. 849, Blackburn, J., before sum- 
 ming up the case before the jury, took occasion, first, to comment upon the effect 
 ■of the Act — Denman's — enabling the prosecuting counsel, in criminal cases, to 
 sum up the case after the evidence for the prosecution had been adduced. It 
 seemed to him, he said, from some observations which had been made, that the 
 -object of that act had been misunderstood, and that if counsel proceeded to act on it 
 in the way for which some appeared to contend — though no harm had resulted from 
 the exercise of the privilege in this case — it would either be necessary to repeal 
 .the act, or the coui-se of criminal justice might be seriously injured. It had always 
 ibitherto been tlie supposition in the administration of criminal justice, as n gene- 
 
KIGIIT TO ItEPliY. 209 
 
 !¥al rule, that thi' prosecuting- counsel was in a, kind ol' judicial position; that 
 while he w;is there to conduct his case, he was to do it iit his discretion, but with 
 ■« feeling- of i-esponsibilitj-— not as if trjnng to obtain a verdict, but to assist the 
 judge in fairly putting the case before the jury, an-i nothing more. 
 
 At nhiprius the counsel was at liberty to try to get his client a verdict, if 
 possible, by fair and proper means. In a court of criminal judicature, the coun- 
 sel for the prosecution was in a different position. The Act of last session did 
 mot make it a duty, as lie thought, of the prosecuting counsel in criminal cases 
 to sum up, but gave him the power to sum up whore that had become cxcr-ption- 
 ■^Uy necessary, in order to set right something that had come out in the course 
 -of the case, and might seem to him to require explanation. If that course were 
 ■followed — if, in other words, the prosecuting counsel, when the evidence had been 
 adduced, wore to say nothing, unless something different from what he had 
 ■opened had been elicited, and it was necessary, therefore, that ho should give 
 iome explanation, then it miglit bo deemed the counsel for the prosecution would 
 -Tiave rightly appreciated the meaning and intention of the act, and the course ol 
 •criminal justice would go on as it ought to do — the prosecuting counsel regard- 
 ing himself really as part of the court, and acting- in a quasi judicial capacity. 
 -But if the practice was, as he understood it had become in this court, to regard 
 the summing up by the pro-iecuting counsel as a duty, the course that obtained 
 at niai priiis, wliich w.is a contest betw?on party and party, might creep in, and 
 ■the prosecuting counsel in a criminal case, forgetting that ho himself was a kind 
 ■of minister of justice, might, at the end of his case, address an urgent appeal to 
 'the jury, and make hini~elf a mere p.u-tisun. In that case it would be a positive 
 "duty and necessity for the juilga, instead of regarding the counsel for the prosc- 
 •cution as aHfiiafin j him, to watch and seo that thorc was no unfair advantage 
 taken by him to catch a verdict, apart from the merits. lie quite agreed that it 
 ■was in the discretion of ii. prosecuting counsel whether he would sum up or not; 
 but he thought that it should be exercised onjjj in rxcrp/ionnl cases, anil not 
 •as <i rulr . 
 
 The Ileporters. in a note to the above rase, say: --Tlie Act in question ("28 
 Vict. 218) recites that it is expedient that the law of evidence and practice on 
 ■trials for felony and misdemeanor should Ijc more nearly assimilated to that in 
 ■trials at nisi prius, and enacts (? 2) that it shall be the duty of the judge, at the 
 ■close of the case for the prosecutor, to ask the counsel for the prisoner whether 
 lie intends to adduce evidence ; and in the event of his not announcing his inten- 
 tion to do so, the counsel for the prosecution shall be allowed to address the jury 
 a, second time in support of his case, for the purpose of summing up the evidence 
 against the prisoner; and every prisoner shall be at lil)erty to (jpen his case and 
 examine witnesses, and, when all the evidence is concluiled, to sum up the evi- 
 
210 RIGHT TO REPLY. 
 
 Jence respectively, and the right of reply and practice and course of proceeding- 
 shall, save as hereby altered, be as at present. Upon which it is to be observed 
 that the language is in substance the same as in the 0. L. P. Act, 1854, ? 18, as 
 to trials at nisi prius ; that the party who begins shall, in the event of his 
 opponent not calling evidence, be allowed to address the jury a second time at 
 the close of the case, for the purpose of summing up the evidence, and the party 
 on the other side shall be allowed to open the case, and also to sum up the 
 evidence." 
 
 As to which it has been held that this means legal evidence, and evidence 
 legally sufficient to call for an answer, Hodges vs. Ancrum, 11 Exch. 214. So 
 that if the judge rules that there is no case, the counsel cannot address the jury, 
 but only the judge. 
 
 This seems to open the key to the true construe/ ion of the clauses, which is,, 
 that the second speech of the counsel for the prosecution or plaintiff' is to be con- 
 fined to comments on the evidence given; though the second speech of the coun- 
 sel for the prisoner or defendant may comment upon all the evidence which has 
 been given, and can scarcely avoid doing so ; and the words are that he may snm 
 up the evidence, not his evidence. 
 
 It is clear that within these limits these enactments give an absolute right ; but' 
 on the other hand, the exercise of it is subject to that general judicial control 
 which the whole conduct of counsel in the course of a case, especially a criminal 
 case, clearly is, and more particularly the counsel for the prosecution. It is to 
 be observed that unler both these enactments, if the defendant calls no wit- 
 nesses, he has the last word, as at common law ; and, on the other hand, if he 
 calls witnesses, the prosecution has the last word, as at common law, so that the 
 duty still — as before — devolves upon the judge, of exposing anj- sophistries or 
 fallacies in the view of the case presented in the last address. 
 
 It is clear, from the whole scope and tenor of the act, especially tlie proviso as 
 to the general course and practice in the proceedings, that the act was not intended 
 to be a step towards a general assimilation of civil and criminal procedure, or (o 
 do away with those numerous distinctions which exist between them, especially as 
 to the cdurse and conduct of the case for the prosecution. 
 
 And us before the act, it was well settled that the right to rrph/ ought not to- 
 be exercised except where really necessary for the purposes of justice; so of the 
 right to sum up under the present act. And it is gratifying to observe that there 
 was no difference between the learned judge and learned sergeant as to the exis- 
 tence of the above mentioned distinction or the general principles to be adhered to. 
 
INDEX. 
 
 \Tt\cf mid notes indt'xiil togefltcr on same 2>a<jr.] 
 
 A 
 
 ABATEMEXT — plea of, affirmative, 102, 105, 111 — ^judgiiiont in. 111 — hou' 
 pleaded — civil issues, 137, 138, 139, 140, 141 — indictments, 170 — dcmuirci- 
 to, ou indictments, 169 — cifect of ovciTuling to indictments, 171. Si'c 
 Joinder. 
 
 ABSEXCE — deatli may be prcsumod, 09 — of defendant in trial f(n- misde- 
 meanor, 171. 
 
 ACTION" — wkat survives against executors, &c., 125, 147. 8oe Assum}>sit 
 
 Case — Trespass — Ejectment — Defamation, &c., &c. 
 
 ACCEPTAXCE — presumed, of advantageous act, 67 — of deeds with covenants , 
 binds. 69 — of bill, presumes funds, 68 — is principal like maker of a note, ib. 
 
 ACC'OUX'l'S — burden of allowing, at the Sessions, 175, 17G. 177, 17H — againsl 
 a decedent's estate, 154 — rendered — presumption from not ol)jecting, 7.'). 
 
 ACCIDENT — presumed rather than negligence, 14. 
 
 ADMFSSIoXS— by negative — pregnant with affirmative, 3 — by special plea, 4 
 93, 14.'! — in the pleading, testimony not contradict, 5 — liy offering avoiding 
 testimony, 7 — for want of denials in pleadings, 8, 17, 70— by default judg- 
 ment, 14, 100. Sec Default. At trial to get the opening, 30, 92, 93, 94, 
 102, 106, l-'!3 — need not l)e proved, 37, 91 — by demurrer to testimony, 85 — 
 in plea when tupply defects in the declaration, 87, 97 — not of matters not 
 well pleaded, 91 — in a trial not to be extended by implication, 92— binding 
 in a second trial, 92 — by plea of payment to the common counts, 93, 132, 
 142 — by payment of money into court, 93, 94 — on notes to get beginning, 
 i)0, 91, 92, 93, 94— in ejectment to get beginning, 95— by the general issue 
 ;i6— by proceedings in another action, 97 — by negativing one of several 
 breaches, 97 — in one plea not used in another, 113 — of jurisdiction by plea 
 to the merits, 130 — by special pleas_to_thc common counts, 142, — by plead 
 inn- to indictments, 170. .Vs to tesHmony, fee Objections— Tcstimonv. 
 
 (211)* 
 
212 INDEX. 
 
 [Tt'Xl and noUts iR<lcxi:tl Idijftlifr on. same j^iag '.] 
 
 ADMlMSTEATOll?^, etc.— liabilities, S, 110. See E.xecutors. 
 
 AI)VA\'J'A(JK — pivsunpfioii that one iicci'])ts. (17 — of rig'lit of be;jiniiiiig', 84.. 
 182, 18.3. 
 
 AFFIIIM ATIVK — meiuis substaiicf, 2. 11, l'.\. 20 — plea not supported by jiioor, 
 ."), 8.") — as to bcginiiing- means whole ease bv the pleadings, 0, 7, 15, 10 — plea 
 of di.schai-fre from alleged liability, 10 — and negative pleading, 11 — by mere- 
 modes of statement, 23 — when equally probable with negative, 73 — on part- 
 Tiership rrl nun, 80 — effect of proving too much, 87— of recoupment, 119 — 
 counter claim, llfl — one on both sides, 127 — pleas in abatement, 137, 138,, 
 139, 140. 141 — maintaine<l by preponderance, 188 — must l)e supported by 
 testimony to authorize a reply, 188, 189, 19o, 196. 
 
 AGENT!5 — municipal no presumption of authority, .V")— when acts presuvnod 
 accepted, G7 — violate instructions liable to nominal damages. 142. 
 
 AGGEAYATKJX- not issuable, 2. 
 
 ALLEGATION — must conflict to make issue, ii — admitted if not contested, 8 — 
 difference between affirmative and negative illusti-ated, 11, 13, 14 — grammati- 
 cal form of, 11, 13, 1.") — is all that need be proved, 84 — presumption favors 
 negative, 31. 
 
 ANIMATES — presumed to act according to their nature, 03- dogs, 63 — presump- 
 tion of habit from genus not species, 6.5. 
 
 ANSWER — not aid bill wanting in equity, 94 — burden on general reply in 
 equity, 188. 
 
 APPEAL — on bill dismissed on demurrer, 127 — from award on land damagfis. 
 154 — to Sessions, 175, 170, &c. See Error. 
 
 APPEABANCE— presumed general, 60. 
 
 APPLICATION — of payments, 45 — on running accounts. 07 — of secured 'aiK? 
 unsecured debts, 67. 
 
 AEEAIGNMENT— purpose of, &c., 171. 
 
 AEGUMENT — not contradict instructions, 40, 183 — inferences from suspicions 
 testimony, 02, 183- of the question of the right to begin, 81— not allowed 
 on opening case, 81— opening in criminal cases, 172, 173— objections to form 
 of convictions, 175 — rights of counsel generally, 182, 208— not upon assumed 
 facts, 183— closing, 183 — time allowed, 185 — only when affirmative supported 
 by some testimony, 188, 189, 192 — reply of State's attorney in criminal cases' 
 
 195, 196 — reply on suggestion of facts not in evidence, 196, 197, 198, 199 
 
 counsel's right to correct misrepresentations of evidence, 199 — on points of 
 law raised, 200, 207, 192 — of case made or stated, 195, 155. 
 
iNBEx. 213:. 
 
 [Ti-'xt and notes indexed toijether on same paijc] 
 
 AUKE.S'l' — of judgment— what facts presiimea proved on, U— for not joinino- 
 proper plaintiffs when, Ul— what constitutes in false imprisonment, 152. 
 
 AS.-^AULT — infant convicted — intent to commit rape, 40, 5,). 
 
 A.-^SAULT AND BATTERY— plea plaintiff himself made the assault— ,s(<,. 
 assaidt (/eme,s»(>. defendant begins, 10,3 — count in— joined with trespass q. 
 c. f., 151. 
 
 ASSESS — damages after issue tried, defendant opening, 101, 112, 117. 120. I(i2 
 — confined to breaches .set out, 147 — on replevin bond, 102 — parish rates- 
 burden on appeals, 175, 176, 177, 178, 179. 
 
 ASSU>[P.SJT — for not embossing in workmanlike, itc, 17 — for not buiidiiin 
 
 according to specifications, 23 — against an attorney for negligence, 22 plea 
 
 infancy — reply new promise, 74 — by assignees, plea set-off, 70 — for goods 
 sold to be paid for in specific articles, 94 — plea, coverture, 102 — for not layin"- 
 out money on good security, 101, 102 — admission in bill of particulars gives 
 beginning. 102 — on bill of exchange, plea abatement, 105 — for medical 
 services, plea damage by negligence, 118, 119— on bills and notes. (See 
 Notes and Bills.) Burden on de injuria, 137 — when the action lie's gener- 
 ally, 141 — distinguished from debt, 142 — nominal damages, 1-42 — special 
 pleas in, must admit what, 143. 
 
 ATTORVEY — a.ssumpsit against for negligence, 22. See Counsel. 
 
 AUTHOIIITY — special pleas of, amount of evidence, &c., 16, 48, 149, 151— 
 presumption of in corporations, 55 — not as to municipal, 55 — for judicial ails, 
 not quo animii, 57 — when neces.sary to sue must be shown, IS-L 
 
 AYOIDIXO — testimony admissions by, 7. See Special Pleading. 
 
 AAVARD — specially pleaded, proved by plaintiff, 91. 
 
 B 
 
 BALAXCE — note presumed given for, 67 — how proved on common counts, l;-!(i. 
 
 BEGIN — See Eight to Begin — Opening — Reply — Counsel. 
 
 BIGAMY — pre.sumption of death before second marriage, 72 — presumption ol 
 legitimacy of issue, 72. 
 
 BILLS OF EXCHANGE— ,See Notes and Bills. 
 
 BILL IN EQUITY — when must be supported by proof, 94 — admission of by 
 answer, 188 — but wanting cqnity, derive no aid from answer, 94. 
 
il4 INKKX. 
 
 I 'I'l-ii inid ni)/rs /iidexed togetknr on same 2}"il''-] 
 
 BILI. OF I'AllTICL'liARS— admission of amount in, gives bcgiimiiig, 102 
 133, 142 — in notices under general issue are not pleas in effect, 130. 
 
 BLANKS — in notes, &c., filled up, 68— name of payee or obligee, 68 — as to 
 date, 68. 
 
 BONA FIDE — purchasing from one obtaining property by fraud, 48 — presump- 
 tion of in business, 57 — presumption as to holder of stolen notes, 68 — before 
 bankruptcy, 75 — ownership, on plea of void title, 127 — presumption against 
 over-due note, 68. 
 
 BOND — filling blank, when avoids, 08 — over-due, stolen, 68 — no presumption of 
 payment, 76- — plea to damages admits breach of, 99 — judgment on by war- 
 rant, how opened, &c., 101. 
 
 BOOKS — presumption from refusal to produce, 63. 
 
 BREACHES — assignment of one, admits performance of others, 70, 97 — prove 
 negative, 11, 15, 75 — presumption of, suit on bond, 76 — only those properly 
 assigned considered in assessment of damages, 147. See Assumpsit — Cove- 
 nant, 
 
 BREACH OF PROMISE— of nian-iage, burden on, i4.j. 
 
 BROKER — double agency, no commissions. 58. 
 
 BURDEN or PROOF— convenience in metaphysics, 4, 183, 184— when each 
 allegation equally probable, 6, 8 — shifting at the trial, 7, 15, 88 — to deter- 
 mine right to begin means what, 7, 29, 88, 133, 134 — means substance of the 
 issue, 11, 13, 26 — on negative obligations, 11, 75 — on negative averments, 11. 
 24. (See qui tarn, License.) On issues out of Chancery, 12 — on allegation 
 of deficiency, 12 — non-repair, 12, 118, 123, 147 — to free one's self from 
 liability, 14, 75 — collusion, 22 — on the wrong-doer, 14 — on extrinsic circum- 
 stances to instiuments, 15 — breach of warranty, 15 — building specifications, 
 16 — taking goods exempt, 16, 149 — at trial means whole case, 16, 134 — 
 makes pri^na facie case, 16, 31, 70, 75 — by admissions in the pleadings, 17. 
 70 — no consideration, notes and bills, 18, 133 — negligence, 22 — test of the. 
 right to begin, 17, 18, 19, 20, 21, 26— fraud, 32, 33, 132— replevin q. v.. and, 
 27, 128 — possession of stolon goods in larceny, 31 — in malicious prosecution, 
 33 — relevancy of testimony, 36, 37, 38— competency, 37 — means proof of 
 each circumstance, 43 — on illegality of contract, 47, 57 — fraud in life insur- 
 ance, 47 — of justification by official duty, 48, 149 — on policy, plea combusti- 
 ble, not noticed, 52 — election and qualification of officers, 53 — quo ivarranto, 
 54 — of breach of official dity, 55, 56, 75 — on assailing good faith and legal 
 ity, 57— on trustee, 58, 59 — action for assisting wife to leave her husband. 
 
INDEX. 215 
 
 [Text and notks indexed together on same page.] 
 BURDEN OP VViOOl^— continued. 
 
 08— to reduce murder to manslaughter, 61— of insanity, 70, 124. (See 
 Insanity.) Of lucid interval, 61— on the destruction or suppression of 
 evidence, 62, 63, 144— on scienter, 63, 132— against bad faith as to stolen 
 notes, bonds, etc., 68— of death from absence, 69— of survivorship in common 
 disaster, 69— of death from old age, 69— prevents nonsuit, 70— of death 
 previous to second marriage, in bigamy, 71— from known principles of con- 
 duct, 73— ability to produce evidence, 74, 75— on qui tarn and license, 75, 
 76, 77— under game laws, 76— notice to debtor of claim assigned, 76— con- 
 sent of parent to marriage, 76— rules of the author, 78, 79— when and how 
 settled by the court, 81— opposite party sustain, 87— effect of proving too 
 much, 87 — gives prima facie right to begin, 88— on plea of tender, 94— on 
 goods sold to be paid for in specific articles, 94- one issue on the plaintiff, 
 98, 126, 127— of damages not give right to begin, 100, 101, 102, 103, 113, 
 114, 117— abatement for uon-joinder, 102, 139, 140— on general issue in tres- 
 pass, 115, 116 — on license to enter, 116— in elements of actions involving 
 negligence, knowledge, intent, deceit, &c., 118— malpractice, 118— covenant, 
 plea, fraud, 122, 132 — on defamation (see Defamation) — on payment with 
 set-oflF, 124 — on defence of insanity to policy, 124 — when affirmative on both 
 sides, 127 — in equity, 188 (see Equity, Bill)— on demurrer, 127, 155. (Sec 
 demurrer, 127 ; see Notes and Bills.) On replication de injuria in assumpsit, 
 132. On set-oif (see Set-Ofif; see Counter Claim) — of affirmatives introduced 
 together, 134, 135 — on general issue and special pleas, 135 — on notice of 
 insolvency, 143 — interlineations and alterations, 144 — breach of promise of 
 marriage, 145 — on contributory negligence, 148 — that the plaintiff consented 
 to wrongful act, 147 — of authority to sue, 154 — case stated, 154 — on rules to 
 show cause, 154 — on appeal on land damages, 154 — of claim against decedent's 
 estate, 154 — on interpleader, 154 — on validity of a will, 154 — undue influence 
 against a will, 154 — case made up, 155 — habeas corpus, 155 — appeals on 
 error, 155 — mandamus, 155. See Presumptions — Assumpsit — Case — Eject- 
 ment. 
 
 c 
 
 CAEEIEE — burden — having game in his possession, 77. 
 
 CASE — prima facie what, 7 — action on for deceit, &c. See Deceit — Negli- 
 gence Defamation. For assisting wife to leave her husband, 58 — for mal- 
 practice, 119 — action of, generally, 145^distinction between case ex con- 
 tractu and ex delicto, 146 — election of, 146— distinction between it and 
 trespass, 148— reserved for argument burden on, 154, 155. 
 
 15 
 
216 INDEX. 
 
 [Tr.rt ami notes zmltxed together on same page.] 
 CAUSE AND EFFECT— as to relevancy, 38, 39. 
 CERTIORARI — any time — for want of jurisdiction, 61. 
 CHANCERY— burden of issues out of, 12, 9.3, 1.54. 
 CHARGING JURY— 30, 40, 41, 42. See Instructions. 
 CHARACTER— evidence of, 190— proof of gives reply, 190. 
 
 CHECK — burden on action on, 131. 
 
 CHIEF — evidence in distinguished, 83. 
 
 CIYIL — law — burden of proof, 131 — actions divisions of, 98 — take law from the 
 court, 183. 
 
 CLOSING — See Reply. Belongs to party having primary burden, 30 — closing 
 
 argument, 183. 
 CO-EXECUTORS- liability for each other, 9, 10, 11. 
 COMMENTS— of court upon evidence, 35, 36. 
 
 COMMON COUNTS— special pleas to, 132— proof of balance on, 136— special 
 pleas to, admit amount in bill of particulars, 142. 
 
 COMPETENCY — assumed by party introducing it, 37 — presumption in favor 
 of, 37. 
 
 CONFESSIONS — presumption against, criminal trials, 172. 
 
 CONCLUSION — of pleas, country, verification, 25 — abatement, 140. 
 
 CONSENT — parents to minor's marriage, 76 — plea of to injury, 150 — negatived 
 by non-age, 46, 65. 
 
 CONSIDERATION— burden on bills and notes, IB, 46, 67, 86, 183. 
 
 CONSTRUCTION— favor fairness, not void, 36, 37. 
 
 CONTRACT — whether proved as well as terms, for the jury, 33 — effect of when 
 ])rovcd for the court, 33 — of corporations, 55 — capable of two constructions, 
 57, 58, 59— municipal, 55— where the contract is in law unfair, 58 — law. aids 
 execution instead of defeat, 59 — persons presumed to know the legal effect 
 of 59. C4, 65 — lex loci contractus et fori presumption, 60 — evidence on 
 altered or suppressed, 62 — parties estopped by recitals in, 70 — relied on in 
 pleadings admitted, 70. 
 
 CONTINUANCE- of domicile, 56, 65— of a particular state of things presumed, 
 6.5— of debt till payment shown, 65 — of vendor's lien, 65 — partnership, 65— 
 life, 65, 69— of possession, 65, 66— of ownership, 66— presumption of surviv- 
 orship, 69 — of life as to first marriage in bigamy, 72. 
 
INDEX. 217 
 
 [Text and notes indexed together on same page.] 
 
 '€OXTKIBUTORY— negligence, burden on plaintiff, plea is negative, 148. 
 
 CORPORATIONS— presumption that they have done dnty, and against ullru 
 vii-es, 55— when acceptance by trustees presumed, 61~contra as to munici- 
 pal legislature, 55. 
 
 ■CORPUS DELICTI — in offences public and private distinguished, 79. 
 •CORRECTION' — counsel's right on misrepresentation of facts, 199. 
 •CORROBORATING— witnesses in reply what, 82. 
 ■COUNTER CLAIM— used to sustain or defend action, 119, 132. 
 COUNTS— in trespass q. c. f., 108. 
 
 'COURT — bound to act on the pleadings, 5, 88— not draw inferences of fact, 33, 
 35 — determine legal effect of contract established, 33— determine basis of 
 inference, 33 — questions, basis of special verdict, 34 — not judges of law in 
 criminal cases, 34 — not weigh evidence even by consent, 35 — instruct as to 
 presumption of law, 35, 42 — must distinguish evidential facts, 35 — comment 
 upon evidence, 36 — not separate legal from illegal evidence, 38 — rule of 
 relevancy of testimony, 38, 39 — charges and instructions, 39, 40, 41, 42, 43 — 
 direct a verdict when no conflict of evidence, 43 — equal division of judges on 
 a point, 43 — casting vote, 181 — form and quality of instructions, 43 — estab- 
 'lishes all minor propositions in a decision, 45 — record q. v. presumed incapa- 
 ble of malice, 57 — presumption of correct action, 61 — recognize laws of 
 nature, 63, 64 — public history, 64 — when and how settle right to begin, 81 — 
 determines order, issues tried, 97 — not divide issues, 127 — nominal damages 
 on breaches, 142 — declaration admitted by special plea, 14.3 — criminal trials, 
 170, 171, 172— defendant in, must submit to jurisdiction, 171— right to 
 appear in by counsel, 182 — will not allow inqoroper matter in argument, 183 
 — must pronounce law in civil cases, 183— how far control the argument, 185 
 
 reply on testimony introduced to, 192, 193— decide whether sufficient proof 
 
 to go to the jury, 194 — allow counsel to correct misrepresentation of the 
 evidence, 1 99 — discretion to hear argument of law, 182, 206. 
 
 'COUNSEL statement of as to damages, 106 — assurance of antecedent facts to 
 
 make evidence relevant, 37— prosecuting in criminal cases, 173, 208, 209— 
 litigant's right to have, 182— not assume facts in argument, 183, 184, 185, 
 196, 197, 198— subjects of comment, 183, 184, 187— when ^comment upon 
 party's declining to testify, 184— time occupied in argument, 185— general 
 and special reply, 186— partial opening, 186-^waiving opening, 187- reply 
 -only when affirmative supported by testimony, 188, 189— reply in criminal cases. 
 
218 INDEX. 
 
 [Texi and notes indexed together on same page.] 
 
 COUNSEL— conimued. 
 
 195, 196 — reply on suggestion of facts not in evidence, 196, 197, 198 — right 
 to correct misrepresentation of evidence, 199 — discussing point of law, 206 — 
 State's attorney counsel to the court, 173, 208, 209. 
 
 COUPONS— blank, payee inserted by thief, 68. 
 
 COVERTUEE — of party negatived by judgment against, 44 — plea of in assump- 
 sit, 102. 
 
 OOVENANT^for not repairing, 118, 123— plea of fraud, 122— action in gen 
 eral, 147 — testimony on default judgment, 147. 
 
 COVEYANCE— presumption of acceptance of, 67, 69. 
 
 CEEDIBILITY— for the jury, 33. 
 
 OEEDITOR — presumption against, 8 — till obligation proved, 8 — application of 
 payments, 45, 67. 
 
 OEIMINAL TEIALS — jury judge law and fact, 34 — improper evidence- 
 excluded, whether objected to or not, 38 — effect of presumption of innocence 
 in, 49, 71 — insanity defence, 64, 71 — misdemeanors, for want of license, 
 qualification, &c., 76, 77, 78 — objections to indictments, 169, 170 — burden 
 on not guilty, 172 — burden on special pleas, 173 — confessions of the prisoner;. 
 172 — State's counsel should open the case, 172 — must be confined in opening- 
 to facts proposed, 172, 173 — prosecuting counsel, not advocate of a party, 
 173, 208 — opening by defendant's .counsel, 173, 174 — reply when defendant 
 offers testimony, 189, 194, 195, 196 — statement of facts not in evidence gives; 
 reply, 198, 199, 200, 201, 202— reply given to check counsel, 199. 
 
 CEOSS-EXAMINATION— extent of right, 82. 
 
 D 
 
 DAMAGES — plea to is too large, 2, 99 — assessed on default, presumed on goo^ 
 cause when, 56 — presumption of against wrong-doer, 47, 48, 62 — against 
 finder of lost jewel refusing to restore, 62 — by admission in pleadings, 93 — 
 is question of law, 99, 100 — when nominal, 93, 99 — right to begin on, 100, 
 101, 102, 113, 117— defined by mere forms of action, 104, 117, 118— general 
 and special, 109 — substantial, 109, 117 — rule of the English judges not 
 adopted in this country, 114 — ^measured after issue tried, 101, 117 — wheni 
 nominal in assumpsit, 142 — in replevin, 162. 
 
 DATE — filling in blank in note, bond, &c., 68. 
 
INDEX. 219 
 
 [Text and notes indexed together on same page.] 
 
 DEATH — presumed from seven years' absence, 69, 71, 72 — how presumption 
 rebutted, 72. 
 
 DEBT — presumed to continue till payment shown, 65 — for goods, plea coverture, 
 102, 133 — for escape, 117 — distinguished from assumpsit, 141, 142. 
 
 DECEIT — for obtaining money under false pretences, 50. 
 
 DECISIOX — of general, includes subordinate propositions, 45. 
 
 DECLARATION — must overcome presumption and show liability, 13 — pre- 
 sumption that case stated, strongly as can safely, 27 — presumption against 
 on motion to arrest, 14 — assigns breach of one, admits performance of other 
 stipulations, 70 — determines character of suit, 27, 146 — defects sometimes 
 supplied by plea, 87 — venue of facts in, is formerly, 130 — pleas to in assump- 
 sit, 143. See Trespass — Case — Replevin. 
 
 DEED — presumed good against void, 58, 59 — acceptance by grantee binds as 
 maker, 69 — not contradict recitals, 70. 
 
 DEFAMATION — presumption against criminal acts in, 51 — justification plea, 
 amount of proof, 50 — for libel on surgeon, 107 — pleas and right to begin in, 
 120, 121, 122 — plea of words spoken in judicial proceeding is affirmative, 148. 
 
 DEFAULT — no evidence to support afiSrmative pleas, 5 — by withdrawing 
 appearance, 5 — what facts admitted by, 14, 100— what examinable on 
 inquest of damages, 100— case stands on, after plea stricken out, 129— in 
 action of covenant, J 47. 
 
 DEFENDANTS— if plea proved by plaintiff, 5, 91. See Criminal Trials, 174. 
 
 DEFICIENCY— burden on allegation of, 12. 
 
 DE INJURIA— replication of admits, &o., 103, 152— in assumpsit, 131. 
 
 DELIVERY— of note when, if no date, 68. 
 
 DEMURRER— summary by motion for judgment on the pleadings, 5— to evi 
 
 dence, 85 to bill, 127 — special, motion to strike out, 130 (see Strike Out)— 
 
 differs from motion to strike out, 130— for defects of parties, 141— burden 
 on, 155— to plea in abatement to an indictment, 169— to indictment and 
 judgment on, 170. 
 
 DENIAL— See Negative — General Issue, &c. 
 
 DISOUSSION—See Argument— Counsel— Reply. 
 
 DISCHARGE— plea of affirmative, 10. 
 
 DISTRESS— See Trespass— Replevin. 
 
220 INDEX. 
 
 [Text and notes indexed together on same page.] 
 
 DIVIDE — not to give defendant opening, 99. 
 
 DOUBT — reasonable, in criminal trials, 49. 
 
 DOGS — when presumed to worry sheep, 63. 
 
 DOIVIICILE— presumed to continue, 56. 
 
 DOWEE — burden of proving widow in, 98 — presumption of, instead of gift inn 
 lieu of, 98. 
 
 DKUNKENNESS— not disprove malice, 61. 
 
 DUTY — presumption that money paid is owing, not loan, 11 — presumed to be- 
 done, 13, 47, 48, 50 — presumptions must be consistent with, 32, 50 — burden 
 on official, 48, 55 — criminal neglect not presumed, 51, 52, 53 — judicial and 
 ministerial when incompatible, 53 — presumption against neglect of, 55 — not. 
 presumed done when depend upon another officer's act, 56 — imposed by law- 
 gives case ex contractu or ex delicto at election, 146. 
 
 DUEESS— burden on plea of, 91. 
 
 E 
 
 EJECTMENT — presumption as to missing link, 68 — by heir, defence illegiti- 
 macy, 95, 156 — generally, 155, 156, 157, 158, 3 59 — on partition proceedings^ 
 160. 
 
 ELECTION — between general issue and special pleas, 133 — between assumpsit, 
 and debt, 142 — between case ex contractu and ex delicto, 146 — must appear 
 in declaration, 146. 
 
 EQUITY — of redemption, acceptance of conveyance of as to mortgage, 67 — whert 
 averments in a bill must be supported by proof, 94 — burden on cross-bill,, 
 answers and proofs, 127 — burden on party objecting to a decree, 127 — 
 demurrer burden, 127 — burden on the pleadings, 188. 
 
 EEEOE — in awarding beginning to wrong party, 16, 84, 165, 166, 167, 168 — ia 
 admitting testimony, must appear to have been excepted to at the trial, 42. 
 — in wrong I'uling, not waived by an attempt to comply, 16, 87 — to refuse- 
 instruction that jury judge law and fact in criminal trials, 34 — to submit 
 effect of contract to jury, 33 — to submit questions to jury when no conflic-t 
 of testimony, 35 — not where neither party could be injured by the ruling oa 
 the right to begin, 90 — as to the right to begin not cured by allowing a, 
 reply or a part of a right, 92, 93 — not reverse a judgment after pleaded iru 
 
INDEX. 221 
 
 ['Tc.Kf and notes indexed Inijr/Iir,- on fiinni- page.] 
 Y.RB.OII-— continued. 
 
 bar, 97— -n-aut of objection at the trial waives, 135— for not joining- proper , 
 parties, 141— burden on, 155, 2oT— burden criminal cases to House of Lords. 
 175— on objection to form of conviction, 175— as to instructions, 40, 41, 
 42. 43. 
 
 ESTOPPEL — by judgment waived by subsequent issue, 44— from contradicting: 
 recitals when. 70— by admissions in pleadings, 70, 91- by matter litigated 
 in previous suit, 9^;, 119 — from reversing a judgment after pleading in bar, 
 97 — mutual, 119. 
 
 EVIDENCE- generally (see Testimony)— p ;■///! a fctcie wliat, 7— must cover 
 each circumstance, i:c., 43. 
 
 EXCEPTIOXS — and provisos in statute when negative in indictments, 77, 78 — 
 to testimony at the trial or not be excluded by instructions, 42— to the 
 admission of testimony, 37. 
 
 FACTS — how alleged, 1 — to make out point, 1 — prima facie evidence of, 7 — 
 and inferences for the jury, 32 — whether the contract be proved, 33 — submit- 
 ted as a basis of special verdict, 34 — evidential to be distinguished by the 
 court, 35 — open to jury incpiiry unless estopped or waived, 45 — settled by 
 default, 100, 101 — arising after suit brought, plead piuis dai-riiii cnnlinu- 
 ance, 119 — in evidence which authorize a reply, 189, 190, 191. 
 
 FALSE IMPKISOXMEXT— for arresting an infant incapable of felony, 55— 
 arrest and justification generally, 152. 
 
 FALSIFICATION — of false pretence in declaration for, 5(1 — in indictment for 
 perjury, 50 — elements of action for false pi'etenci's, 57. 
 
 FEIGNED — issue to try fraud, itc, in default judgniL-nt opened, loi). 101. 
 
 FIDUCIARIES — presumption against. 5S. 
 
 FEANCHISE — burden on quo warraido for usurping, 53. 
 
 FRAUD burden on, 22, 33 — plea of to impeach record, 45 — in application for 
 
 life insurance, 47 — how affect bona fide purchasers, from one obtaining- 
 property by, 4H, 132 — presumption against, 57, 5H — intent to deceive neces- 
 sary, 57 — not predicated of future transactions, 58 — special plea gC in. cove- 
 nant, 122. 
 
 FREEDOM — presumption of, 11. 
 
 FRIGHT presumption that people act precipitately, (14. 
 
222 INDEX. 
 
 [Text and notes indexed together on same page.] 
 
 G 
 
 GAME — laws burden on, 16-7. 
 
 GENERAL ISSUE — presumption in favor of— 14, 11, 31 — special pleas — amount- 
 ing to 22-3-4, 129, 149 — a fiction in pleading, 24 — special pleas filed with 
 29, 135 — denies right to sue jointly, 86, 141 — trespass, d, b, asp., with brief 
 statement, 94 — puts plaintiff on proof of his case generally, 96, 143, 150 — 
 admits the character in which the plaintiff sues — 96 — admits corporation of 
 plaintiff, 96 — not withdraw and assume the right to begin, 97 — in trespass, q. 
 c. f., puts iu issue what, 115, 116, 150 — confines to rights as at commence- 
 ment of suit, 119 — waived by plea puis darrien continuance, 119 — or special 
 plea — election, 121, 133 — in defamation considered, 121 — notices under are 
 not special pleas, 130 — how'pleaded with tender, 132 — plea of, admits juris- 
 diction, 130 — denies joinder of plaintiffs, 141 — puts in issue in assumpsit, 114. 
 
 GENERAL — and special reply on the facts, 186. 
 
 GENERATION — powers of presumed, 64 — in trespass, d. b, asp., 151. 
 
 GIFT — when presumed and not loan. 73. 
 
 GOOD FAITH— see bona fide. 
 
 GRANTEE — when bound though not sign and seal, 69. 
 
 GUARRANTY — Nat. bank not make contract of, 55 — surety added to, last signer 
 on note, 67 — when drawer of bill is, 68. 
 
 GUN — presumed dangerous to discharge, 64. 
 
 H 
 
 HABEAS CORPUS— burden on, 155. 
 
 HEIR — presumption against illegitimacy, 11 — intestate left, 64 — must set off 
 
 dower before — ejectment against widow, 159. 
 HISTORY — court judicially notice when, 65. " 
 HOMESTEAD — wife signing mortgage, upon, 56. 
 HUSBAND AND "WIPE — evidence, parties living together as such, 58 — actipa 
 
 for assisting wife to leave lier husband, 58. See Coverture. 
 
 I 
 
 IDIOCY — presumption against, 64. 
 ILLEGALITY— of contract, burden on, 47, 57- 
 
INDEX. 223 
 
 [Text and notes indexed together on same page.] 
 "ffLLEGITIMACY — presumption against, 11, 71 — defence in ejectment, 95. 
 IMMATERIAL — issue — when struck out and leave declaration good, 2. See 
 
 damages — aggravation — strike out, &c. 
 INDEBTEDNESS— plea to— conclusion of law, 90. 
 
 -INDICTMENTS — negative provisos and exceptions in statutes, 77-8 — acts 
 against the public and individuals, 79 — demurrer to a plea in abatement to, 
 169 — not special plea with not guilty, 169 — clearly bad — court refuse to try, 
 169 — tried by a plea — not a motion to quash generally, 169 — containg one 
 good count, 169 — objection to jurisdiction, 170 — demurrer to, 170 — when 
 plea must be entered, 171 — not impeached at the trial, 174. 
 JNDUCEMENT— Matter of not admitted by general issue, 96. 
 INFANT — under 14 not commit rape, 46 — under 7 not guilty of felony, 46, 65. 
 INNOCENCE — presumption of as to all crimes and misdemeanors, 49 — an ele- 
 iment of proof, 49 — to rebut, prove a negative, 49 — how over come in criminal 
 trials, 49, 172 — presumption of in collateral civil issues, 50-1 — in defama- 
 tion suit, 51 — extends to third parties, 53 — as to character, 190 — not extend 
 to statute qualification and licenses, 77. 
 l^NQUEST — of damages — extent of inqury, 100. 
 
 INSANITY — burden on in issues out of chancery, 12 — presumption of continu- 
 ance, 61, 66 — presumption against, 64 — in criminal trials, 64, 71 — not pre- 
 sumed against will, 66 — proof necessary .to establish, 71 — not presumed from 
 suicide, 124. 
 INSTRUCTION — that jury judge law in criminal cases, 34 — generally, 39, 40- 
 1-2-3 — objections to oral, 39 — before argument, 40,183 — objections to, 40 — 
 erroneous, 41 — as to presumption in the absence of proof, 166. 
 ^INTEREST — presumption that men act according to, 67 — disqualifies judge and 
 
 juror, 66. 
 INTERPLEADING— claimants burden of, 154. 
 INTESTATE— presumption that he left heirs, 64. 
 
 IRRELEVANT — testimony must be objected to specially, 37. See testimony. 
 IRREBUTTABLE— presumtions what, 45. 
 
 jESSUE^must be joined, 1, 19 — legal materiality only considered, 2, 86, 128 — 
 must be plain, 3 — substance of, 11, 13, 26 — burden in — out of Chancery, 12i 
 97, 154 — last negative and affirmative struck out as a test of right to begin, 
 28-9, 30, 88 — proof of rests on each essential link, 33 — taken on facts merged 
 in judgment, 44 — civil and criminal, involving crime — 51, 71 — testimony, not 
 go beyond, 84 — motion for judgment, test of right to begin, 88 — on defective 
 
224 INDEX. 
 
 \_Text and notes indexed together on same page.] 
 
 ISSVE— continued. 
 
 articles sold, 89 — iu equity, 94 — immaterial not foundation for verdict, 94 — 
 order of trial of, 97 — one on the plaintiff gives beginning, 97-8 — on dama- 
 ges discussed, 110-11-12-13-14-15-16-17 — produced by reply under the 
 Code, 127. 
 
 J 
 
 JOINDER — of parties to notes, 86 — denial of partnership or joint interest, 86 — 
 of plaintiffs, objections to, 140-1 — defendants, 137-8-9, 140-1 — torts are 
 joint and several causes of action, 147. 
 
 JUDGES — presumed incapable of malice, 57 — no interested person set as, 66 — 
 rule as to beginning, adopted by the English, 114, 145, 152. See CoUrt. 
 
 JUDICIAL — office when incompatible with ministerial, 53 — acts depend upon 
 authority — not intent and quo animo, 57. 
 
 JUDGMENT — motion for arrest and non obstante veridicto as a test as a right 
 to begin, 17 — motion for, on the pleadings as a test of right to begin, 88-9 — 
 what must be exercised by the jury, 32 — merger waived by issue, 44 — how 
 impeached, 56 — not reversed for error, after pleaded in bar, 97 — on warrant, 
 of attorney, how opened, 101. See Default. 
 
 JURISDICTION — when must appear, 57, 61 — admitted by plea to the merits 
 130 — objections to in indictments, 170, 
 
 JURY — find facts upon conflicting testimony, 32, 35 — all inferences of fact;- 
 32 — make application of presumption of fact, 32 — power not will but judg- 
 ment, 32, 84 — judge of credibility, 33 — must find each essential circumstance,. 
 33 — power to give a general verdict, 34 — power as to special verdict, 34 — 
 form of special verdict, 34 — ^judges of law and fact in criminal cases, 34 — 
 charges and instructions, 39, 40-1-2-3 — presumed incapable of malice, 57 — 
 judges on express malice, 61 — no interested person sit, 66. 
 
 JUSTICE — no presumption against, 32. • 
 
 JUSTIFICATION — by official duty, 48 — amount of proof in defamation, 51 — 
 by license in qui tarn actions, 76-7-8 — by plea of so7i assault demesne, 103 — 
 libel on surgeon, 107 — of trespass with courts for conversion by assignee of 
 bankrupt, 107 — the dismissal of a teacher, 110 — shooting dog accustomed 
 to bite. 111— by claim of title in trespass, 116 — in defamation, 120-1-2 — 
 rebutting what, 135-6 — extent of as to breaking and entering, 151. 
 
 L 
 
 IjARCENY — presumption from possession of stolen property, 31, 83. 
 
INDEX. 225 
 
 [Text and notes indexed together on same page.] 
 
 ^^-^^y — Right to begin, Ac, is, 5, 44 — ^juiy judge of in criminal oases, 34 — pre- 
 sumption of knowledge of, 46 — not presume any one violates its command, 
 48 — presumed complied with by public officerr, 53 — proceedings in derogation 
 of the common law, 61 — of nature presumption of uniformity, 63— argument 
 on, discretion of court, 1H2— argument of hy counsel for the prisoner, 1*14 — 
 opened in the opening, 187— of argument by prosecuting attorney, 109, 110. 
 See Court. 
 
 LEGITIMACY — presumption of, 52 — not contradicted by parents, 52 — based 
 on the presumption of innocence of bigamy, Tl — right to begin on issue of 
 in ejectment, 95. 
 
 LEVIES — rates — assessments — omissions, &c., 1T5-6-T-8. 
 
 LEX LOCI — presumed where contract good and not void, 60. 
 
 LIABILITY — must be stated in declaration, 13 — default judgment does not 
 import, 14 — burden on, to free from, 14. 
 
 LICENSE — qui tarn against apothecary, 75-6 — under the game laws, 70 — bur- 
 den on selling liquor without, 77 — to enter, special plea of in trespass, 116. 
 
 LIEE — policy — plea fraudulent representations — right to begin, 47 — of sui- 
 cide, 124. 
 
 LIMITATIONS- See Statute of Limitations. 
 
 LOAN — presumption that money paid is not, 11, 73. 
 
 LUCID — interval — when presumption against, 61-2. 
 
 M 
 
 MALICE — ^judges and juries — presumed incapable of, 57 — when presumed ia 
 manslaughter, 61 — murder, 61 — express in murder is fact for the jury, 61 — 
 in drunkenness, 61 — in defamation, 120-1-2. See Trespass. 
 
 MALFEASANCE — presumption against, 13. 
 
 MALICIOUS — prosecution proof on, 33. 
 
 MALPEACTICE— case considered, 119. 
 
 MANDAMUS— burden on, 155. 
 
 MATERIALITY— test of issue, 2, 11, 13. See Damages. 
 
 MARRIAGE— See Breach of Promise of Marriage. 
 
 MERGER— by judgment waived by issue subsequent, 44. 
 
 MINISTERIAL— when incompatible with judicial, 53. 
 
 MISDEMEANORS — discretion as to allowing plea after demurrer, 171. See 
 Criminal Trials. 
 
226 INDEX. 
 
 [Text and notes indexed together on same page.] 
 MISTAKE— not presumed, 67 — but affirmative defence, 67. 
 MOTIONS— test of right to begin by motion for judgment, 17, 88-9— to set 
 
 aside indictments, 170-1 — burdens on generally, 207. See Strike Out — 
 
 Demurrer, &c. 
 MORTGAGE — when presumed extinguished by accepting deed — 67. 
 MOTHER'S GIFT— when presumed loan— 73. 
 MUNICIPAL — power not presumed, 55. 
 MURDER — all presumed second degree, 61. 
 
 N 
 
 NATIONAL BANK — not enter into contract of guaranty, 55. 
 
 NATURE — laws presumption of uniformity, 63. 
 
 NEGATIVE — pregnant pleas, 3 — averments traversing affirmatives, 11, 75-6- 
 7 — plea what, 14 — illustration of affirmative and negative averments, 11, 
 31 — presumption in favor of, 11, 78, N. Y. 480, 31 — obligations require proof, 
 11, 75 — in substance — not form, 11, 13 — double is affirmative, 15, 26 — tes- 
 timony, 29 — by form of pleading, 23 — must prove to overcome presumption 
 of innocence, 49 — must be proved in perjury, 49 — proof of in action for false 
 pretences, 50 — and affirmative equally probable, 73 — when allege but not 
 prove, 75-6-7 — negligence — want of skill is, 118, 119 — plea of title fraudu- 
 lent and void, 127 — pleas in assumpsit. See Pleadings. 
 
 NEGLIGENCE — dependent upon all the evidence, 8 — presumption against, 14, 
 52 — against attorney for, 22 — against physician, 119 — action implies a duty, 
 146-7-8 — burden of contributory, 148. 
 
 NOMINAL — damages by admission in the pleadings, 93 — whenever a wrong done 
 to a right, 99 — in assumpsit, 142 — implied by proof of trespass, 150. 
 
 NON FEASANCE— presumption against, 13. 
 
 NON INTRODUCTION— of testimony— comments on, 183. 
 
 NON JOINDER— of defendants— plea of is affirmative, 102, 105, 111. See 
 Joinder. 
 
 NONSUIT — not when burden on defendent, 70 — when he appears, 70 — burden 
 on discussions, &c., 207-8-9. See Argument Counsel. 
 
 NOTES AND BILLS— burden on no consideration, 18, 19, 67, 86, 90-1, ISO- 
 limitation runs from date of demand note, 45 — presumed to be made where 
 valid and not void, 60 — presumes balance due, 67 — made firm name presumed 
 used by firm, 67, 86 — signed by three — surety written after the last, 67 — pre- 
 
INBEX. 227 
 
 [Text and notes indexed together on same page.] 
 NOTES AND BIl,hS~contmued. 
 
 sumptions against over-due, 68— presumption that acceptor has funds, 68— 
 on stolen, 68— filling blanks, 68— bona fide holder before bankruptcy, "76— 
 burden as to joint, 86— on plea of partnership, 86— mutilation not influence, 
 right to begin, 88— admissions to get right to begin, 90-1-2-3-4, 129, 130-1— 
 indorsement of interest to relieve the statute of Limitation, 96— plea of 
 coverture, 102, 133— plea notice of insolvents discharge, 143— presumptions 
 on interlineations, <fec., in, 144. 
 
 NOTICE— of combustible matter to avoid policy, 52 — Want of seaworthiness, 
 
 75 — of assignment of judgment before payment, 76 — of matter under general 
 
 issue is not a plea, 130 — of insolvents discharge — 143. 
 NOT GUILTY — when plea entered in criminal cases, 171 — joint — by several — to 
 
 an indictment is a several plea, 174 — waves objections to the indictment 
 
 174. See General Issue. 
 
 o 
 
 OATH — official — when presumed to have been taken, 53. 
 
 OBJECTIONS — to competency of testimony, 37-8 — relevancy, 37-8 — grounds 
 must be stated, 38 — waived except those pointed out in the testimony, 45, 
 70, 135 — when a party by his acts deprives himself, 69 — not to instruments 
 relied on in the pleadings, 70, 130-1 — to indictments, 170 — raising point of 
 law — discussion, 206 — to instructions, 40-1-2-3. See Testimony. 
 
 OFFICEE — acting is presumed to be elected and qualified, 53 — de facto is such 
 by color of election, 53 — right of — not tried collaterally, 53 — compatibility 
 of two, 53 — act dependant upon another's act not presumed, 56 — burden of 
 justification by, 48. 
 
 ONE — issue on the plaintiff give right to begin, 97-8, 126-7. 
 
 ONUS PKOBANDI. See Burden of Proof. 
 
 OPENING — rules in this country, 81, 184-5-6-7 — lay the foundation to exhaust 
 all the testimony in chief together, 82-3-4, 134, 187— object of in suit on 
 note, 131 — in criminal trials, 173-4, 184 — partial opening, general and special 
 reply, 186, 210 — effect of declining, 186-7-8 — when read authorities, 207. 
 
 OPINION— of the court on the evidence, 35-6. 
 
 ORDEE— of the introduction of testimony, 37— illegal— not presumably obeyed 
 18, 49 — possession of presumption of payment, 58— of the trial of issues, 97. 
 
 OVEEDUE— bonds, notes, coupons— stolen, &c., presumption, 68. 
 OWNEE — of property — law favors, against one— claiming under one obtaining- 
 by fraud, 48. 
 
228 INDEX. 
 
 [Text and notes indexed together on same page. 
 
 PAROL — burden to apply extrinsic circumstances, 15 — excluded where the law 
 presumes ■writing, 55 — not by a party who withholds primary even on cross- 
 examination, 63. 
 
 PARTITION— proof of in ejectment, 160. 
 
 PARTNERSHIP — presumption from one party destroying books, 63 — presumed 
 continuance, 65 — notes made in the name of — presumed used in the business, 
 67 — what amounts to a denial of 86. 
 
 PARTY — testimony of on trial, 33 — presumed to know the law under which they 
 claim, 46 — presumed to know the contents of their own contract, 46 — joinder 
 of actual on contract, 86. See Joinder. 
 
 PAYMENT — presumption against, 8, 65, 76 — money paid is not evidence of a 
 loan, 11, 73 — application of, 40 — presumption of from the possession of order, 
 58 — not presumed made by mistake, 67 — burden on breach of bond, 76 — of 
 lost note, &c., 76 — admission by plea of 93-4 — admission by the payment' 
 of money into court, 94 — in specific articles, 94 — plea of with set off, 124, 
 presumption of — from lines drawn across credits on note, &c., 144 — plea of 
 on an action for money lent, 144. See Application of Payments. 
 
 PERJURY — falsehood of affirmative must be proved, 49 — proof of, 50. 
 
 PLEA — sworn — subject of comment, 184. 
 
 PLEADING — object issue, 1 — how allege facts, 1 — desjunctive, 2 — neither too 
 broad or too narrow, 3 — conclusion of law, _ 3, 90 — definition of special, 4, 
 132 — legal intendment of determines right to begin, 5, 86 — not supported by 
 proof, 5, 85-6-7 — negative and affirmative illustrated, 11, 13 — the declaration 
 
 illustrated, 13 — admissions in is fact as though found by a jury, 17, 37, 87 
 
 diiFerence in statement to make affirmative or negative, 23, 24 — testimony of, 
 25, 133 — declaration determines character of the suit, 27 — burden, &c., Re- 
 plevin, 27— determines right to begin — not oral admissions, 30, 92, 133— not 
 prove facts admitted in, 37, 70, 91 — parties bound by the issues they raise 
 in, 44, 70, 135 — in quo warranto, 54— no presumption unless cause of action 
 averred, 56— presumption as to jurisdiction, 56— contracts, notes, &c., relied 
 on in, 70, 130-1 — one count or plea not bind as to others, 70 — assign breach 
 of one stipulation — admits performance of others, 70— opened by plaintiff to 
 settle the right to begin, 81— denial of right to sue jointly, 86— pleas to 
 notes to determine right to begin, 86-7-8, 129, 130-1-2-3— in discontinued 
 
 actions not evidence, 97 — estoppels as matters in former action, 97 must go 
 
 to the right of action not damages, 99, 128 — each plea tried as if pleaded 
 
INDEX. 229 
 
 [Text and notes indexed together on same page.] 
 
 FL.EA.DISGS—continued. 
 
 aloue, 113 — case at issue under code by reply, 127— motions to strikeout, 130 — 
 venue when mere form, 130 — election general issue or special plea, 133— pro- 
 cedure on negative and affirmative pleas, 135— pleas in abatement, 137-8-9, 
 140, 141 — in assumpsit, 141-2-3 — in breach of promise to marry, 145 — in 
 trespass, 151 — plea plaintiff assaulted defendant or son assault demesne, 
 152 — in trover, 153 — opened how, 187 — burden in equity, 127, 188 — materi- 
 ality. See Issue and Strike Out. 
 
 PLEXE ADillXISTRAYIT— plea of— changed in most of the States, 9. 
 POINT — issue, 1 — dependent facts, 2. 
 POLICY. See Insurance. 
 
 POSSESSION — presumption as to Larceny, 31, 83 — presumption of life estate 
 from, 66. 
 
 POWER — burden of extending to extrinsic, 75 — presumption must be considered 
 ■with, 32 — power of mind and body presumed, 64. 
 
 PEAOTICE — See motions — Strike Out — Argument — Counsel — Testmony — In- 
 structions, &c., &c. 
 
 PEEPONDERANCE — not sufficient in criminal cases, 49 — when civil issues 
 involve criminal facts, 50-1 — sufficient to establish a fact in a criminal's 
 favor, 71. 
 
 PRESUMPTION — ol law and fact distinguished, C, 45, 67 — natural and legal 
 or artificial, 71-2-3 — of faat must rest on established facts, 6 — is reasoning, 
 6, 32 — makes a. prima facie case, 7, 16, 28, 31, 47, 70, 73-5 — of fact chang- 
 ing at the trial, 7, 28 — against debt, 8, 11 — against payment, 8, 65, 76 — 
 against assets of administrator, 8, 10 — against illegitimacy, 11 — in favor of 
 freedom, 11 — against loan, 11, 73 — in favor of a negative allegation, 11, (78, 
 X. Y. 480), 31 — must be overcome in declaration, 13, 70 — against breach of 
 duty, legal or otherwise, 13, 47, 57 — against obeying orders of superiors if 
 Hlegal, 49, 13 — favors accident as against negligence, 14— on default 14 — 
 against testimony on a motion in arrest, 14 — against defendants' affirmatives, 
 14 against the pleader, 14, 56— not favor exemption from common law lia- 
 bility, 14— against wrong-doer, 14, 47-8, 62— of fact by the pleading, 17, 70— 
 of consideration of bills, &c., 19, 46— effect of transfers burden, 31, 47, 28, 
 
 16 70 from possession in larceny, 31 — when a natural process of reasoning, 
 
 6, 32 must be consistent with duty, trust, &c., 32, 58, 59 — of fact for the 
 
 jury, ,S2 as to probable cause, 33— not based upon presumptions, 33— favors, 
 
 competency and credibility of testimony, 37 — court instruct on when, 42, 43, 
 166— not established by law, must be logical, &c., 43— irrebuttable, 45, 
 
230 INDEX. 
 
 [ Text and notes indexed together on same page.] 
 
 FRESUM.PT10ii— continued. 
 
 46 — that infant cannot commit rape before 14 or other felony under seven, 
 45, 46, 65 — of knowledge of law, 46 — of consideration, 46 — carnal knowledge^ 
 of child under 10 is rape, 46, 65 — from seal, 46 — of honesty, 47, 57 — against 
 suicide, 47 — of lawful contract, 47, 58, 65, 73 — not that party has violated 
 law, 47, 57 — stands for proof, 47, 70, 73, 75 — not that a party engages in 
 illegal business, 47, 58, 59 — favors owner of property against bona fide vendee- 
 when, 48 — of innocence, how overcome in criminal trials, 49, 71, 172 — in 
 perjury, 49, 58 — in deceit for false pretences, 50, 57 — of innocence in collateral 
 civil 50-1, 71 — of innocence of crime in slander, 51 — of legitimacy, 52 — of 
 innocence extends to third parties, 52, 53— that one acting in official position, 
 is elected, &c., 53 — as to officers when the public is concerned, 53 — of written, 
 excludes parol testimony, 55, of conformity to law — applies to corporations,. 
 55 — against ultra vires, 55 — against authority of municipal contracts, 55 — 
 against authority of municipal agents, 55 — against breach of official duty, 55, 
 60 — ^when depends upon another officer's act, 56, 75 — as to official proceedings — 
 must appear regular, 56 — not supply independent facts, 56 — continuance of 
 domicile, 56, 65 — that damages correctly assessed, 56 — against malice in 
 judicial officers, 57 — of good faith, 57 — against fraud, 57 — in case contract, 
 capable of two constructions, 58, 73 — against illegality, 58, 59, 65 — that 
 parties living together are husband and wife, 58 — of payment from posses- 
 sion of order, 58 — against fairness in trustees, 58 — against rendering con- 
 tract void, 59, 65, 73 — that parties intend operative contract, 59, 73 — and 
 that the lex loci is where contract operative and not void, GO — that docu- 
 ments not found in their proper offices do not exist, 60^in favor of general' 
 tax assessment, 60 — as to recitals in sheriff's deed, 60 — that appearance is 
 general, 60 — that defendant continues in court, 60 — that a man intended 
 result of his own act, 61, 65 — not of express malice in murder, 61 — as to 
 degree of murder, 61 — as to continuance of insanity and lucid interval, 61, 71 — 
 that writ was issued, 61 — against party aUering — suppressing — testimony, 62:" 
 144 — on neglecting to produce testimony, 52, 73, 74 — from failing to call 
 
 opposite party as witness, 63 — of possession of all 'natural powers, 64 
 
 against idiocy, 64^sterility, 64 — of leaving heirs, 64 — on discharge of gun, 
 64 — on actions of people alarmed, 64 — of continuance, 65 — of continuance 
 of debt, 65, 76 — of continuance of partnership, 65 — of continuance of sanity, 
 66 — of competency of testator, 66— of payment of policy premiums to pre- 
 vent lapse, 66 — of life estate from possession, 66 — against mistake, 67 of 
 
 surety on note, 67 — from partnership name to note, 67 — on application of 
 payments, 67 — of acceptance of advantageous act, 67 — that widow adopts- 
 
INDEX. 231 
 
 [Text and notes indexed together on same page.] 
 PRESUMPTION— co?i<i«ue(/. 
 
 legacy in lieu of dower when, 67 — that men act according to interest, 67 — 
 that accept equity of redemption in discharge of mortgage, 67 — as to accept- 
 ance of certain devises, 67 — against overdue note, 68 — of funds in acceptor's 
 hand, 69 — of bona fides in the the purchase of stolen notes, 69 — when stolen 
 negotiable securities are mutilated or incomplete, 69 — as to delivery of blank 
 date, 69 — effect of bona fides established by, 68 — as to missing link in eject- 
 ment, 68 — of death by absence, 69, 71, 72 — of death by old age, 69 — of sur- 
 vivorship, 69, 72 — against a party by his own acts or estoppel, 69 — from 
 accepting deed, 69 — known principles of conduct, 73 — from not objecting to 
 an account, 73 — from capability to produce testimony, 73, 74 — and see qui 
 tarn actions and License — against License, 76, 77 — of innocence when obtains 
 in statutory crimes, license, &c., 77, 78 — of insanity, not from suicide, 124 — 
 on alterations or interlineations, 144 — criminal trials generally, IJl, 172 — 
 that party will not confess guilt, 172 — of good character in criminal trials, 190. 
 
 PRIMA FACIE— case definition of, 7 — error to deprive a party of the presump- 
 tion of, 16 — when shift is a question for the jury, 16 — may rest on at trial 
 when, 29 — made by presumption of fact, 31, 75 — right to begin on burden 
 of proof on the record, 88, 133— obtain right to begin by admitting when, 
 94 102, 133 burden not shift by — at the trial, 134 — court decide when suffi- 
 cient to go to the jury, 194. 
 
 PRIYILEGED — communications in defamation, 121, 122. 
 
 PROBABLE CAUSE— in maiioious prosecution— for the jury when, 33. 
 
 PROBABILITIES in favor of one allegation more than the other, 6, 30, 32. 
 
 PROMISSORY NOTES. See Notes and Bills. 
 
 PROVISOS— and exceptions in statutes when negative in indictments, 77, 78. 
 
 PUIS DARRIEN CONTINUANCE— plea when proper, 119. 
 
 
 
 QUASHING— indictments, 170, 171. 
 
 QUE EST EADEM— averment in justifying plea, 105— in assumpsit pleas, 132. 
 
 QUI TAM— against an Apothecary without a certificate, 75, 76— game laws, 
 
 76— for marrying minors withaut consent, 76. 
 QUO WARRANTO— burden on the relator when, 53, 153— for usurping a 
 
 franchise, 54. 
 
232 INDEX. 
 
 [Text and notes indexed together on same page.] 
 
 R 
 
 KAILEOAD — collision — shock presumed according to momentum, 63. 
 
 RAPE — infant under 14 cannot commit, 46 — infant convicted of assault with 
 intent to commit, 46 — is carnal knowledge of child under ten, 46, 65. 
 
 EAYISH — when infant may be convicted of assault with intent, 65. 
 
 EEASONABLE— doubt in criminal trials, 49, 71. 
 
 EEBUTTING— testimony what, 82, 134, 135, 136. 
 
 EECEIPT — presumption of payment of consideration, 4G — included in a con- 
 tract, 46. 
 
 EEOITALS — in sheriff's deed, 60— in instruments parties bound by, 70. 
 
 EECOED — impeachable for fraud, &c., 45, 56 — evidence only when regular, 56, 
 57 — made up erroneously, 57 — not found in public office, 60 — presumed 
 rightly done when jurisdiction appears, 61 — of summary proceeding pre- 
 sumption against, 61 — admissions by to obtain beginning, 133. 
 
 EECOUPMENT — election to use as a defence or bring suit, 119. 
 
 EEGULAEITY— presumption of, 60— injaw of nature, 63. 
 
 EELBVANCY — defence specially pleaded — proved by the plaintiff, 5 — consid- 
 eration of, 37, 207 — rule of, 39— depending upon other proof, 37 — counsel's 
 statement, 37 — burden of, 37 — opposite counsel must require relevancy to be 
 pointed out, 37— reply by party offering testimony, 38— depends upon alle- 
 gations, 44 — tested by its tendency not weight, 191. 
 
 EEPAIE — right to — implied from right of way, 45 — burden — in covenant for 
 not, 12. 
 
 EBPLEVIN— burden and right to begin, 27, 128— pleas in 28— pleas and proofs 
 generally, 161— for property sold at judicial sale— no damages, 162— dama- 
 ges on bond, 69, 162. 
 
 EEPLIOATION — of de injuria admits assault and battery, 103 libel 107 
 
 where complaint is avoided under code- 127— faulty for duplicity struck out, 
 
 129— de injuria in assumpsit, 131— in assault and battery, 152 in equity 
 
 effect of on burden, 188. 
 
 EEPLY— party having primary burden, 30, 84, 182— on objections to competency 
 of testimony, 37— on objections to relevancy, 37, 38, 207— defendant has 
 right in settling right to begin, 81— replying or rebutting testimony what, 
 82, 134, 135, 136— is a consequence of right to begin, 30, 83, 182, 183— cor- 
 roborating witnesses in, 82— what testimony— not support defendants affir- 
 
INDEX. 233 
 
 [Text and notes unlexed together on same page.] 
 
 UEPLrS— continued. 
 
 niatives. 87— when the question arises after the testimony in, 88— not cure 
 error of beginning where a party entitled to both, 92, 93— general right of 
 argumentation, 182— closing argument, 183— right of in all discnssions 
 183 — general and special on the facts, 186-7— when opposite party intro- 
 duces testimony, lsA-0— not on testimony to court, 192— on admissions in 
 pleading, 30, 188-9— in equity, 188— to authorise, must support affirmative, 
 189, 190— efiect of— on proof of character, 189, 190— upon legal objections- 
 192, 207— State's Attorney's right, 19.i-6-7— on point of law, 2n(i-7. 
 
 RES ADJUDICATA — matters necessarily in issue in previous suit, 119. 
 
 EIGHT — contested and not damages — test of rights to begin, 29, 30, 102. 
 
 EIGHT TO BEGIN- special pleading adapted to determine, 4, 88-0— is ques- 
 tion of law, 5, 29, 30 — test of offering no proof, 5, 17, 87 — when neither 
 allegation more probable, C, 87 — error to deprive on & prima faeie case, 16, 
 165 — test of no evidence or judgment — legal niaterialitj', 2, 86, 128 — test of 
 strike out — particular allegation, 18 — test of strike out the last affirmative 
 and negative, 20 — in replevin, 27, 160-1-2 — when general issue filed with 
 special pleas, 29, 139 — primary burden, 30 — depends upon presumptions of 
 law, 44, 88 — on life policy plea — fraudulent representation, 48, 124 — in quo 
 uarranto, 54, 153 — rules of the author, 78-9 — settled by court when and 
 how, 81 — one counsel on each side heard on, 81 — advantages of right of, 84- 
 5, 183-4 — on pleas to notes, &c., 86-7-8 — test of motion for judgment on the 
 pleadings, 88 — not reversed for error that could not injure, 90— error not 
 cured by giving reply or part of right, 92-3 — obtainec] by admissions before 
 trial, 92, 102, 106, 120, 126— but see p. 30— goods sold to be paid for in 
 specific articles, 94, 143 — ejectment, 95 — on general issue, 96, 29, 30 — one 
 issue on the plaintiff, 30, 97-8, 126 — in abatement for nonjoinder, 102, 111, 
 137-8-9, 140-1 — in assault and battery, 103 — substantial damages, 109 — ■ 
 damages does not give right, 113 — slander and libel — see Defamation — by 
 .admitting amount of damages, 120, 120 — under code when case at issue by 
 reply, 127^equity — see Equity — when plaintiff no evidence but note, 131 — 
 on off-set — see Set-off— on counterclaim — see Counterclaim, 132 — assumsit 
 generally, 141-2 — trespass, 151 — when necessary to have authority to sue, 
 
 154 special cases stated, 154— rules to show cause, 154— rules nisi, 154, on 
 
 appeal from land damages, 154 — claim against an estate, 154 — interplead- 
 ing claimants attachment, 154 — undue influence against a will, 154— error 
 to deprive party of right, 165-6-7 — in criminal trials, 172-3-4 — criminal 
 appeals to Sessions and House of Lords, 175-6-7— on objections to form of 
 convictions, 175— on equity pleadings, 188— in discussions, 37-8, 182-3, 192, 
 207. 
 
234 INBEX. 
 
 [ Texl and notes indexed together on same page.] 
 
 EULE — of burden, three parts, 6 — of the author, 78-9 — convenience of -a, 106 — 
 of the judges, 113 — -extent of the rule of the judges, 126, 145 — to show 
 *ause, 154 — msi, 154. 
 
 SCIENTER — how proved, 63— as to mischievous animals, 63. 
 
 SCIRE FACIAS — to rivivc, judgment — pleas in, 44, &c., 46. 
 
 SEAL — not in the way of proving mistake, frand — no consideration, 46. 
 
 SECONDARY — evidence not by a party who refuses to produce for opposite 
 
 counsel — primary, 63 — must be objected to, 70, 45, 70, 135. 
 SET-OFF — of notes before bankruptsy, 76 — on set-off and payment defendant 
 
 begins, 124, 132. 
 SEPARATE — court not — legal from illegal testimony, 38. 
 SINGLENESS— in pleading, 1, 2, 3. 
 
 SHERIFF — office incompatable with that of justice when, 53 — delinquency not 
 
 presumed without preponderence, 56 — acts not judicial when, 60 — nominal 
 
 ^damages for neglect of duty, 142 — how declare against in trespass, 151 — 
 
 tleed burden on in ejectment, 159. 
 
 SHIFTING- — burden at the trial, 7 — not effect burden and right to begin, 38, 
 
 134. 
 SLANDER— See Defamation. 
 SON ASSAULT DEMESNE— plea of, 103, 152. 
 SPECIAL — damages and general, 110. 
 SPECIFICATIONS- burdenon breach of building, 16. 
 
 SPECIAL PLEADING— adapted to determine the right to begin, 4 — definition 
 -of, 4, 14 — defence by^prevail though plaintiff prove, 5, 87, 91, 151 — not 
 supported by proof, 5, 87 — of discharge, 10, 14 — presumption against, 14 — 
 must prove, 14 — amount of proof of authority, 16 — amounting to general 
 issue, 23, 24, 89, 90, 118, 119, 130, 141, 143, 149— filed with general issue, 
 2,9, 96, 135 — of license to enter in trespass, 116 — not amount to general issue 
 ■when affirmative, 130 — to common counts, 132 — when elect between and gen- 
 -eral issue, 133 — to common counts — admits amount in bill of particulars, 
 142— must admit what in assumpsit, 143— amounting to general issue, is 
 form only, 149 — not favored in Trover, 153. 
 SPOLIATION— of evidence presumption on, 61. 
 STATE'S ATTORNEY— counsel to court, &c., 173, 208-9. 
 
INDEX. 235' 
 
 [Text and notes -indexed together on same page] 
 
 STATUTE OF LIMITATION— runs from date of demand note, 45— never 
 runs — want of jurisdition, 61— relieved from endorsed payment of interest 
 on note, 96. 
 
 STEEILITY— not presumed, 64. 
 
 STOLEX — bonds, coupons, notes, &c., presumptions, 68. 
 
 STKIKE OUT — last affirmative. &c. — as test of right to begin, 20 — in the nature- 
 of summary demurrer, 5, 120, 130— pleas imputing fraud to court, 26, 129 — 
 sham plea, 27, 129 — waiving merger of judgment, 44 — plea to' damages, 128 — 
 evidence, 128 — argumentative, 128 — duplicity, 129 — redundant matter, 129 — 
 after — case stands on default, 129 — part of answer when, 129 — impi-oper 
 pleading in point of time, 129 — false plea, 129 — paper purporting to be plea. 
 and demurrer, 129 — special plea amounting to the general issue, 129, 149 — 
 motion in the nature of special demurrer, 130 — notices under the general 
 issue must amount to a defence, 130 — not a demurrer which attacks first 
 faulty pleading, 130 — special pleas to common counts, 132. 
 
 SUBSTANCE — plea bad if issue immaterial, 2 — and not form in allegations^ 
 11 — illustration of, 11. 
 
 SUMMARY — demurrer, 51, 118 — proceedings presumptions against, 61. 
 
 SUMMING UP— See Counsel— Argument— Opening-Reply— State's Attorney, 
 
 SUICIDE — raises no presumption of insanity, 124. 
 
 SUIT — determined by the declaration, 2". 
 
 SURETY — note signed by three — surety added to the last, 67— when drawer of 
 bill is, 68. 
 
 SURVIVE- test of actions which survive, 125, 147— burden of in common dis- 
 aster, 69. 
 
 T 
 
 TAXES — presumption of regularity, 60. 
 
 TENANTS- in common^in Replevin, 161. 
 
 TENDJ:R— burden on plea of, 94— how pleaded with non-assumpsit, 132. 
 
 TEST— of right to begin— See Right to Begin- of actions which survive, 125, 
 
 TESTIMONY— specific facts uijder generic allegations, 5— must support affirm- 
 ative pleas, 5— not negative— but avoiding, admits, 7, 14, 30, 70, 83— must 
 be produced by him who would discharge himself from liability, 10, 14, 47- 
 8-9, 74-5— presumption against on motion in arrest, 14— must correspond;' 
 with allegations irrespective of gramatioal form, 11, 12, 15, 44, 84— as to« 
 
236 INDEX. 
 
 YTiixi and notes indexed together on same page.'] 
 TEST I MON Y— conimued. 
 
 extrinsic circumstances, 15 — negative. 15, 34, 49 — of autliority by process 
 against the plaintiff, 16, 48, 150 — amount required, 28. 29, 188 — amount in 
 criminal trials, 49, 43 — effect of presumptions, 29 — presumption of inno- 
 cence, 49 — credibility for the jury, 33 — of the parties to the cause, 33 — 
 undisputed for the court when, 33 — weight depends upon each essential link, 
 33, 43 — relevancy to point in controversy, 37 — irrelevant objections must be 
 specific, 37— of incompetency and incredibility, 37 — grounds of objections 
 to must be stated, 38 — court not separate relevant from irrelevant, 38 — rule 
 of relevancy, 39 — must be objected to at the trial or not exclude by instruc- 
 tions, 42, 45 — must prove each circumstance, 43 — party begins to give hav- 
 ing burden on the record, 44 — objections waved except those pointed out, 
 45 — burden never shifts in criminal trials, 49 — for and against in criminal 
 trial, 49^u perjury, 50 — in civil issues involving criminal facts, 50 — not by 
 parents to prove illegitimacy, 52 — parol exclude when law presumes a writ- 
 . ing, 55, 03 — amount to change Ijurden on official duty, 55-6 — on malice, 61 — 
 jurisdiction, 61 — spoliation, alteration, suppression, &c., 62 — presumption 
 from a refusal to produce books, 63 — as to recent facts of history, 64 — not 
 supporting defendant's affirmatives, 87, 192, 5 — of assaults, &c., not justi- 
 fied, 104 — of trespass implies damage, 150 — defendant's affirmations sup- 
 ported by plaintiff's testimony, 5, 87, 91, 151 — not of admitted facts, 5, 37, 
 70 — not of facts admitted by the pleadings, 5, 37, 70, 91 — order of admis- 
 sion, 37 — instruments, notes, &o., relied on in the pleadings, 70, 130-1, must 
 •object to secondary, 45, 70, 135 — presumption from capability to produce, 
 74-5 — of qualification, license, &c., 76-7 — replying and rebutting what, 82- 
 3, 135-6 — against alibi is evidence in chief, 82 — corroborating in reply what, 
 82-3, 1 35-6 — denying or avoiding affirmative facts, 83 — in chief all intro- 
 duced together, 82-3-4, 134-5 — demurrer to, 85 — admissions not to be 
 extended by implication, 92^ntroduction the object of opening, 130-1 — as 
 to balance on the common counts, 136 — in ejectment, 159, 160 — replevin, 
 161-2 — comments on non-introduction, 183, 62 — to authorize reply, 189, 
 192— to authorize a reply in criminal cases, 189— must be real to -authorize 
 reply, 188-9 — as to character, 190-1. 
 TITLE— See notes — Trespass — Ejectment — Keplevin. 
 
 TOETS— joint and several, 147— distinction between case and trespass, 148. 
 
 TRESPASS — burden attaching — goods exempt, 16 — presumed when right 
 invaded, 48 — general issue and brief statement, 94 — q. c. f. plea right of way, 
 101, 150 — for assault, &o. — plea son assault, &c., 103, 152 — pleas — counts 
 
INDEX. 237 
 
 ['Text and notes indexed together on same page.] 
 
 TRESPASS— coi^C/ntfec?. 
 
 in, 108— for destroying dam, etc., 109— d. b. as. plea distress, 110, 115, 134— 
 for shooting dog, 111, 152— q. c. f. is local— 115— what covered by the gen- 
 eral issue, 11 5-0, 150— material issue— not plead to force and arms, 128, 
 151 — distinction between it and case, 148— burden generally, 150- proof of 
 implies damages, 150 — gist of the action — averment of possession, 150 — 
 plaintiff prove title in another, 151 — title of equal strength, 151 — plea of 
 title admits plaintiff's possession, 151 — enter to collect delil, 151 — for false 
 imprisonment, 152 — arrest and just ificution, 152. 
 
 TEESPASS OX THE CASE— See Case. 
 
 TRATEESE — not too broad, &c. — nor too narrow, 3 — nor conclusion of law, 3, 
 99 — as to damages, 99. See Damages. 
 
 TRIAL — shifting burden at, 7, 16, 28. 29, 73, 134 — burden at means whole case, 
 16 — an erroneous ruling not waived by an attempt to comply, IC. — rest on a 
 prima faeie case, 28 — right to begin, 44, 133 — See Right to Begin — pro- 
 duction of notes, etc., relied on in the pleadings, 70, 130-1 — admissions at to 
 obtain right to begin, 92 — See Admissions — burden on general issue, 9G — 
 general issue with special pleas, 135 — objections not urged are waived, 135. 
 See Testimony — Argument — Counsel, &c. 
 
 TROVER — depending upon bannkruptcy, 95— joined with count in trespass, q. 
 c. f., 108 — count in with case for neg'.egence, 146 — action of and pleas gen- 
 erally, 153. 
 
 TRUST — burden on trustee, 58 — presumptions of acceptance of, 67. 
 
 u 
 
 ULTIMATE— fact in pleading, 1, 16. 
 ULTRA TIRES— presumptions as to corporations, 55. 
 UNLIQUIDATED— damages defined by mere form of action, 104. 
 USURPER— officer is if the office be not elective, 53. 
 
 V 
 
 VERDICT— must be on issue joined, 1, 2— negatives all inferences of fact claimed 
 against it, 32— is the product of judgment, not will merely, 32— jury render 
 general or special, 34— form of special, 34 — on immaterial issues, 94. 
 
238 INDEX. 
 
 \^Text and notes indexed together on same page.] 
 VERIFICATION— termination of pleas, 25, 133. 
 VENUE — to each traversable fact^is form only, 130. 
 VOID — presumption against in contracts, 59. 
 
 w 
 
 WARRANTY— burden on breach of, 15. 
 
 WAVER — not of erroneous ruling by an attempt to comply, 16 — of right to 
 instructions, if not asked before argument, 41 — of objections to testimony 
 not pointed out, 45 — of rent will raise presumption of life estate, 66 — of all 
 objections omitted at the trial, 135. 
 
 WAY — right of gives right to repair, 45. 
 
 WEIGHT — evSence means whole case, 16 — overcome during progress of the 
 trial, 28 — each essential circumstance, 33, 43 — of negative testimony, 34 — 
 not for court, 35 — not to be assumed by instructions, 41 — effect of altera- 
 tions, 62 — declining to testify, 62. 
 
 WIDOW — proof of in dower, 98 — when ejected by heir, 159. 
 
 WILL — burden to extend power to other property, 15 — presumption of capacity 
 to make, 67 — burden of validity, 154, 160 — undue influence, 154 — last will, 
 154. 
 
 WRIT — when presumed to have been issued, 61. 
 
 WRONGDOER— presumption against, 14, 48. 
 
TABLE OF CASES CITED. 
 
 [the REFBREJfCES AKE TO THE PAGES.] 
 
 A. 
 
 PAGE 
 
 Absolom V. Beaumont, 1 M.& R. 
 
 441 124,125,126,147 
 
 Abell V. Harris, 11 Gill & J. 367 42 
 Abbott V. Striblin, 6 Iowa, 191 129 
 Adams v. Andrews, 15 Ad. & Ell., 
 
 (N. S.) 292 lO.T 
 
 Adams v. Tharman, 5 Dana, 393 41 
 Adams Express Co. v. Stellamers, 
 
 61 111. 184 21 
 
 Addington v. Allen, 11 Wend. 374 58 
 JEtna Ins. Co. ■;;. Wheeler, 49 N. Y. 
 
 616 14 
 
 Aiken v. Blanchard, 32 Barb. 527 55 
 
 Allen V. Pub. Adm. 1 Bradf. 378 60 
 
 V. Carey, 7 El. & Bl. 463 87 
 
 V. Hartley, 4 Doug. 20 97 
 
 V. State, 21 Ga. 217 53 
 
 V. Wannamaker, 31 N. J. L. 
 
 370 41 
 
 Allen V. SowTjrly, 37 Md. 410 61 
 
 Allison V. State, 42 Ind. 384 32, 35 
 
 Algie V. Wood, 11 J. & Spr. (N. Y.) 
 
 46 11,15,75 
 
 Aldridge v. Great West. E. E. Co., 
 
 3 Mann & Gr. 515 14 
 
 Althouse V. Rice, 4 E. D. Smith, 
 
 347 116 
 
 Ala. Life Ins. Co. v. Central Ag. 
 
 Ass., 54 Ala. 73 55 
 
 Alcott V. Tioga R. E. Co., 27 N. Y. 
 
 546 59 
 
 Alston V. Grantham, 26 Ga. 374 40 
 Amory v. Amory, 3 Biss. 266 56 
 
 Ames V. Brown, 1 Ves. Sen. 480 67 
 V. Beckley, 48 Yt. 395 159 
 
 Amos V. Hughes, 1 M. & Eob. 494 
 
 17, 19, 20, 26, 144. 159 
 Anonymous — Hemst, 215 140 
 
 Andrascoggin B'k. v. Kimbal, 10 
 
 Cush. 373 46, 65 
 
 Anderson v. Eussell, 94 Mich. 109 
 
 63, 184 
 
 Anderson v. Talcott, 6 111. 365 160 
 
 V. Bath, 42 Me. 40 
 
 Apelby v. Obert, 1 Harr. (N. J.) 336 
 
 150, 151 
 Appleton V. Warner, 51 Barb. 270 97 
 Apothecaries Co. i^.-Beutly, E, A; 
 
 M. 159 75 
 
 Arbuckle v. Thompson, 37 Pa. 170 42 
 Archbold v. Thomas, 2 Cow. 284 59 
 Armony v. Delamarie, 1 Str. 505 62 
 Arnold v. Norton, 25 Conn. 92 63 
 
 Arents v. Com, 18 Gratt. 750 68 
 
 Archer r. Archer, 8 Gratt. 539 99 
 
 Armstrong v. Cooper, 11 111. 570 9 
 
 V. Webster, 30 111. 333 
 
 ] 33, 143 
 Arden v. Tucker, 1 M. & Eob. 191, 
 
 188, 192, 206, 207 
 Arthur v. Wallace, 8 Kans. 267 162 
 Ashley v. Bates, 15 Moes. & W. 
 
 589 21, 48, 167 
 
 Asbury v. Saunders, 8 Cal. 62 69, 72 
 Ashton V. Perkes, 9 C. & P. 231 
 
 110, 142 
 Att'y. Gen'l. v. Eeformed Dutch 
 
 Church, 33 Barb. 
 
 303, 5» 
 V. Oakland Co. E. E. 
 (Walk.) Mich. 
 
 90, 78 
 /'. Poote, 11 Wis. 14 55 
 Attleboro v. Middleboro, 10 Pick. 
 
 378 21 
 
 Atkyns v. Horde, 1 Burr. 106 59 
 
 Atkinson v. Warne, 6 C. & P. 687 
 
 120, 134, 1,52 
 Averill v. Taylor, 5 How. Pr. 476 129 
 Avery v. Slack, 17 Wend. 85 16 
 
 Aub V. Weed, 19 Johns. 302 148 
 
 Austin V. State, 11 Mo. 366 171 
 
 V. Norris, 11 Vt. 38 171 
 
 Aurora v. Coble, 21 Ind. 492 92 
 
 Auld 0. Hepburn, 1 (Jr. C. C. 122 94 
 
240 
 
 TABLE OF CASES CITED. 
 
 Ayrault r. Chamberlain, 33 Barb. 
 
 233 21, 8] 
 
 Ayer r. Austin, 6 Picl.. 225, 29, 81, 94, 
 
 111,1.51 
 
 B. 
 
 Bast V. Alfred, 20 Tex. 220 42 
 
 JBarber v. Eose, 5 Hill, 76 130 
 
 Bagley v. Smith, 10 N. Y. 489 41 
 
 •V. Harris, 9 Ala. 1 73 99 
 
 Barnawell v. Triadgilla Jones, 
 
 (N. 0.)Eq. 50 59 
 
 Barden v. Briscoe, 36 Mich. 257 186, 
 
 188 
 Baxton v. Boice, 1 Tex. 317 57 
 
 Balkely v. Ketellas, 4 Sand. N. Y. 
 
 459 36 
 
 Bartle v. Saunders, 2 Grant. Pa. 
 
 199 41 
 
 Bangs V. Snow, 1 Ma.ss. 181, 94 111 
 Barnes v. Allen, 1 Abb. N. Y. 
 
 App. Dec. Ill 58 
 
 V. Hunt, 11 East. 456 104 
 
 r. State, 36 Tex. 356 172 
 
 V. Jennings, 40 Vt. 45 56 
 
 Bedell v. Russell, By. & Mo. 293, 27, 
 
 103, 107, 108, 109, 152, 188 
 
 r. Powell, 13 Barb. 184, 82, !)7 
 
 Belknap v. Wendell, 21 N. Y. 175, 29, 
 
 83, 96, 111, 126, 167, 188 
 
 Bennett v. Bennett, Chan. Div. 40, 
 
 L. T. E. N. S., 378, 73 
 I'. Olemenc, 6 Allen. 10 116 
 -Bevan v. Htiydon, 13 Iowa. 122 41 
 
 Beitler v. Sturdy, 10 Pa. 418 130 
 
 Beldin v. Laing, 8 Mich. 500 140 
 
 -Belo V. Porsythe, 76 N. 0., 489 68 
 
 Bellows V. Shannon, 2 Hill. 88 17 
 
 Bennison v. Davison, 3 M. & W. 
 
 179, 96 
 B'k. of Aub. V. Weed, 19 Johns, 
 
 302, 4, 153 
 V. Humphreys, 47 Ills. 227 57 
 V. Kimbal, 10 Cush. 374 59 
 
 V. U. S. Dandridge, 12 Wheat. 
 
 69,56 
 J5arnett v. Lynch, 5 B. & Or., 589 69 
 Baily V. Culverwell, 8 Bar. & C, 
 
 448, 67 
 Banks r. Lewis, 4 Ala., 599 140 
 
 JBalt. & 0. E. E. Co. v. Polly Wood 
 & Co., 14 
 Gratt. 454 
 4,148,182 
 V. McWinney, 36 
 Ind.436,118,42 
 V. Dobbins, 23 
 
 Md. 210 37 
 
 Ballew r. Clark, 2 Ired. (X. C ) L. 
 
 23 66 
 
 Barber r. Eose, 5 Hill. 76 119 
 
 Baukard v. Bait. & C. E. E. Co., 
 
 34Ind. 197 183 
 Baden v. Plight, 3 Bing. N. C, 685 2 
 Barr v. Galloway, 1 McLean, 476 159 
 Barney v. Demils Wright, (0) 44 40 
 Barrows v. Carpenter, 1 CliEf. 204 120 
 V. Bispham, Halst. 117 101 
 Bartlett v. Prescott, 41 N. H. 493, 
 
 27, 70 
 Barnham v. Howard, 31 Me. 569 140 
 Baker v. Malcomb, 7 C. & P. 101 144 
 Beach v. Givergood, 15 Ind. 496 150 
 V. Cohn, 3 La. Ann. 103 43 
 
 Beaty v. Dormer, 1 2 Mod. 526 2 
 
 Bertrand v. Taylor, 32 Ark. 470 167 
 Berryr. U. S., 2 Col.T. 186 172 
 
 Beal V. Newton, 1 Cr. C. Ot. 404. 
 
 18,87 
 r. Mirriara, 11 Mete. 470 21 
 
 Bellv. Troy, 35 Ala. 181 40 
 
 r. Wood, 1 Dana. 147 146 
 
 V. Prankis, 4 M. & Gr. 446 62 
 
 V. Young, 1 Grant. (Pa.) 175, 
 
 65, 76 
 
 V. Burnett, 2 J. J. Marsh. 516 64 
 
 V. Packard, 69 Me. 8 Eept'r. 
 
 590 60 
 
 Beltr. Davis, ICal. 134 155 
 
 Benham v. Neims, 2 Cal. 408 167 
 
 Bently r. Bently, 7 Cow. 704 8 
 
 Bigelow, et als. v. Gramis, 4 Hill, 
 
 206 74 
 
 Bills V. Stanton. 69 111. 51 68 
 
 Birneyr. N. Y. 0. Co.,18Md. 341 41 
 Bish. of Meath. v. Mar. Winter, 
 
 10 Bligh., N. S. 479 3 
 
 Bishton r. Evans, 2 C. M. & R. 12 2 
 
 Billis V. Phillips, 4 Dutch. 125 41 
 Billinger v. Craigue, 31 Barb. 535, 
 
 118,119 
 
 Bird V. Holman, 9 M. & W. 762 2 
 
 V. Mayer, 8 Wise. 362 146 
 
 V. Lanins, 7 Ind. 615 34 
 
 Bishop V. Day, 13 Vt. 116, 127 155 
 
 Bizzell V. Booker, 16 Ark. 308 64 
 
 Blatcher v. Archer, Cowp. 65 62 
 
 Bland v. People, 4 111. 264 40 
 
 Blakey v. Blakey, 2 Dana. 400 141 
 
 Blackburn v. Beal, 21 Md. 208 38 
 Blight V. Ashley, et. als., 1 Pet. 
 
 C. C. 29 81 
 
 Blaoklodge v. Pine, 28 Ind. 466 133 
 
 Black V. State, 1 Tex. App. 368 175 
 
 Bleeker v. Johnson, 69 N. Y. 309 63 
 
 Blaidsdell v. Crowell, 14 Me. 370 57 
 
 Blake v. Pish, 44 111. 302 62 
 
TABLE OF CASES CITED. 
 
 241 
 
 Blair ,-. Bartlett, 7:i X, Y. 150 119 
 
 r. Brainard, 41 X. H. 25(; 75 
 
 Bogart r. Brown, 9 Piek. 18 63 
 
 Boykhi c. Boykin, To N. 0. 262 52 
 
 Boarders c, Toouy, '.I xVllen. (i,"> 21 
 Borthwick c. Carruthers. 1 T. R. 
 
 G48 74 
 Booth V. Farm. Xat. B'k. of E. 05 
 
 Barb. 4.")7 146 
 
 r. Colton, 13 Tex. 359 85 
 i: Millus, 15 Mces. & Welb. 
 
 669 168 
 
 Boyle V. "Wiseman, 10 Exch. G" 206 
 
 Bovce i: Burchard, 21 Ga. 74 154, 207 
 
 Boaz c. Tate, 43 Ind. 60 152 
 Boardman c. Keeler, 1 Aik. Vt. 
 
 158 43 
 
 Boyd r. ^rdver, 11 Ala. 822 41 
 
 ij'c. Eliy. SAVatts. 66 62 
 
 ■• V. Kennedy, 9 Tr. 146 68 
 
 Boslick ' . Brittain, 15 Ark. 482 1G2 
 
 Bogardus '■. Trinity Cliurch. 4 
 
 Faige. 178 " 188 
 Boonfield <■. Smith, 2 M. A: R. 519 
 
 100, 102, 142, 133 
 Bond r. Hilton, 2 Jones. (X. 0.) 
 
 L. 149 99 
 
 r. Mallune, 1 7 Tex. 636 43 
 
 Bosw-ell ('. Corn, 20 (iratt. 860 61 
 
 Bodenham r. Hill, 7 M. A: W. 274 25 
 
 Bowen c Aubrey, 22 Oal. 566 128 
 
 V. Speers, 20 Ind. 146 90 
 
 Bonser v. State, 1 Ind. 408 78 
 Borah v. :Martin, 2 Chand. (Wis.) 
 
 56 40 
 
 Boorman r. Brown, 3 Q. B. 515 142 
 
 Bowles V. Xeale, 7 0. it P. 262 116 
 
 Bower & Earl, 18 Mich. 367 41 
 
 Bragne r. Ford, 67 X. Y. 495 37 
 
 Briceland v. Com, 74 Pa. 463 21 
 
 Breid r. Pratt, 18 Pick. 115 66 
 
 Brent v. ritate, 43 Ala. 297 46 
 
 Bradbury r. Crouise, 46 Cal. 287 3 
 
 V. Reed, 23 Tex. 258 85 
 
 Brier r. Woodbury, 1 Pick. 362 57 
 
 Briggs /■. Mason, 31 Vt. 433 157 
 
 V. Pennmsn, 8 Cow. 387 188 
 
 '(■. Taylor, 28 Vt. 180 21 
 
 t-. Dorr, 19 Johns. 95, 1,4, 
 
 70,91 
 
 Brittain v. State, 10 Ark. 299 78 
 
 Branford v. Freeman, 14 Jur. 987 87 
 
 Brazell c. Isham, et al., 12 X". Y. 
 
 g, 5,87, 91, 92 
 
 Bradley v. Eyre, 11 M. & W. 449 2 
 r. Bardsley, 14 Mees. & 
 
 W. 728 3 
 
 V. Clark, 33 Tex. 113 94 
 
 r. McKec, 5 Cranch. C. C. 
 
 298, 21 
 Brandon r. Cabiness, 10 Ala. 
 
 155,21,155 
 r. Huntsyille B'k. 1 
 
 Stew. (Ala.) 320 85 
 
 Brooks r. Barrett, 7 Pick. 98, 7, 30, 167 
 r. Scott, 2 Muiif. (Va.) 
 
 341, 141 
 
 r. Perry, '23 Ark. 32 185 
 
 V. Clark, 4 F. & F. 48 1 92 
 
 Brennan v. Carpenter. 1 R. I. 474 148 
 
 r. Security Ins. Co. 4 Daly. 
 
 296; 142 
 
 r. People, Ip 111. 511 170 
 
 Bronson i\ Taylor, 33 Conn. 116 70 
 
 r. Canthers, 49 Cal. 375 183 
 
 Bradshaw r. Mayfield, 24 Tex. 494 42 
 
 Brown c. Foranentheal, 37 N. Y. 
 
 166, 38 
 V. Campbell, 1 Serg. & R. 
 
 176, 41 
 i: Burnham. 28 I\[e. 38 65 
 
 V. Boorman, 11 C. ct F. 1. 146 
 r. King, 5 ]\[etc. 173 65 
 
 ('. Kentfield, 50 Cal. 129 8 
 
 r. Colson, 41 Ga. 42 159 
 
 r. Chadsey, 39 Barb. 253 152 
 v. Kirkpatrick, 5 S. C. 267, 132 
 i\ Goodwin, et als. 75 X'. Y. 
 
 413, 60 
 V. Lunt, 37 Me. 423 53 
 
 V. Spear, 2 Ind. 146 132 
 
 V. Bulkley, 13 X. J. Eq. 451, 58 
 r. Murray, R. & M. 254, 135. 
 
 136 
 V. Swinford, Wis. 1878, 6 
 
 Eept'r. 639, 186, 188 
 
 Browner v. Davis, 15 Cal. 9 99 
 
 Brunelf v. Runyoii, 4 Dana. 422 42 
 
 Brushaben v. Hageman, 22 Mich. 
 
 266 152 
 
 Bruce v. Pettengill, 1 2 N. H. 341 142 
 Bryan v. Beckley, 6 Lytt. (Ky.) 109, 63 
 Brimett v. Hallis, 9 fex. 437 41 
 
 Bryan r. Wagstaffe, 2 C. & P. 
 
 125 154 
 
 Buddington v. Dayis, 6 How. Pr. 
 
 401 121 
 
 Buhler v. Coonce, 9 Mo. 347 40 
 
 Buchannan v. King, 22 Gratt. 414 61 
 Buffington v. Cook, 35 Ala. 312 41 
 
 Buckley v. Leonard, 4 Denio, 500 60 
 Bulkley v. Storer, 2 Day. (Conn.) 
 
 531 146 
 
 Buel V. Lake, 8 Iowa. 151 129 
 
 V. R. R. 31 X. Y, 314 64 
 
 Buries v. State. 4 Md. 273 42 
 
 Burroughs v. Hous. R. R. Co. 15 
 
 Con. 131 149 
 
242 
 
 TABLE OP CASES CITED. 
 
 Burt V. Gevinn, 4 Har. & J. 507 35 
 
 V. Sternburgh, 4 Cow. 559 97 
 
 Burrall v. Moore, 5 Duer. 654 5 
 
 Bumpus V. Fisher, 21 Tex. 561 57 
 
 Bulford V. Cooke, Peak. Ev. 5 IfiO 
 
 Bullock V. Narrott, 49 111. 62 58 
 
 Bur V. "Wilson, 22 Min. 206 49, 71 
 
 Burrell v. Nicholson, '0. & P. 
 
 2, 1 M. &. E. 304 110, 114, 115, 
 
 , 124, 150, 165 
 
 Burrall v. Moore, 5 Deur. 654 130 
 
 V. Tedmarsh, 1 111. App. 571. 76 
 
 Burntide v. Grand T. E. E. Co. 47 N. 
 
 H. 554 41 
 
 Burnett v. Harris, 50 Barb. 379 33 
 
 V. Dennistown, 5 Johns. 35, 67 
 
 Burgess v. Lloyd, 7 Ind. 177 42 
 
 Burney v. Ball, 24 Ga. 505, 69, 72 
 
 Burgess, 35 Oal. 115 170 
 
 Burton v. Mason, 26 Iowa. 392 21 
 
 Buttersby v. Abbott, 9 Cal. 565 41 
 
 Bulford V. Crike, Peak Ev. 5 188 
 
 Bufflpu. Smith,llN.H.48, 29, 96,161 
 
 Burton v. Mason, 26 Iowa. 392 21 
 
 Busp V. Prosser, 11 N. Y. 351, 120, 130 
 
 Butler V. Slam, 50 Pa. St. 456 183 
 
 V. Collins, 11 Cal. 391 146 
 
 V. Potarhington, 1 Con. & L: 
 
 24,46 
 V. Thompson, 11 B. Mon. 
 
 237, 42 
 
 tK Hempsteds, Adm'rs. 18 
 
 Wend. 666 10 
 
 Button V. Hud. E. E. 18 N. Y. 248, 149 
 
 Buzzell V. Snell, 25 N. H. 474 30, 83, 
 
 98, 136, 167, 188 
 
 Byard v. Holmes, 5 Vr. 299 50 
 
 Byrne v. State, 12 Wis. 519 78 
 
 c. 
 
 Cam. & Anib. E. E. i. Belknap, 
 
 21 Wend. 354 32 
 
 Cathcart v. Peck, 11 Minn. 45 128 
 Cary r. Miller, E. I. May 3, 1879 
 
 8 Eept'r. 698 61 
 
 Callom V. WatkinP. 6 Wis. 629 40 
 
 Cady V. Owen, 33 Vt. 598 41 
 
 Castle V. BuUard, 23 How. 172 40 
 
 Case V. Case, 17 Cal. 598 52 
 
 Cardoza v. Harnies, 5 S. & E. 65 44 
 
 (lamp /'. Helan, 43 Mo 591 41 
 v. Allen, &c., 7 Halst. 
 
 (N.J.) 1,130 149 
 Cannum et al. v. Parmer, 2 C. & 
 
 Kir. 747, 70, 102, 117, 133 142 
 Carr r. Hinchcliff, 4 Barn & Cress. 
 
 553 1 
 
 Cadwallader v. Howell, 3 Harr. 
 
 (N. J.) 138, 3 Vr. 192, 192, 5S 
 
 Casky v. Haveland, 13 Ala. 315 42 
 
 V. Lewis, 5 B. Mon. 27, 151 167 
 
 Castello V. Landwehr, 28 Wise. 522 21 
 
 Cap. McMahon v. Davidson, 12 
 
 Minn. 357 13- 
 
 Calkins v. Sumner, 13 Wis. 193 122 
 Carson v. Willson, 6 Halst. N. J. 
 
 43 1511 
 
 Carson v. Prate, 6 Cald. (Tenn.) 
 
 565 151 
 
 Carpenter v. Eommel, 5 Phil. 34 , 6S 
 V. West, 5 How. Pr. 53 129 
 Carver v. Williams, 10 Ind. 267 5- 
 
 V. Harris, 19 La. Ann. 621 21 
 Caswell V. E. E., 98 Mass. 194 63. 
 
 Carnes v. Piatt, 1 Sweeny, (N. Y.) 
 
 146, 5, 32, 33. 
 Carlton v. Hiscock, 107 Mass. 410 63 
 Calvert V. Carter, Md. 73 58 
 
 Castigan v. Mohawk, (fee. E. E. 
 
 Co. 2 Denio. 609, 48 5&. 
 
 Carlewis v. Oerfield, ] Q. B. 814 62, 
 Clark V. Dibble. 16 Wend. 601 51 
 
 Ca;se V. Mark, 2 Ham. (0.) 169 148. 
 Carris v. Tattershall, 2 M. & Gr. 
 
 890 144- 
 
 Calder v. Eutherford, 3 B. & B. 
 
 202, 8, 142, 
 
 Oampbelli). Fletcher, 37 Md. 430 159 
 
 Cary ■;;. Silcox, 5 Ind. 270 185- 
 
 Carter v. White, 32 111. 509 141 
 
 V. Wallace, 2 Tex. 206, 116, 15L 
 
 V. Glass, (Mich. June 23,) 
 
 1880, 10 Eept. 466, 146 147' 
 V. Jones, 6 C. & P. 640, 1 
 M. & E. 281, 114, 116, 117, 118, 
 
 124, 125, 135, 145, 146. 
 Central Bridge v Butler, 2 Gray, 
 
 130,11, 16,21 
 Bank, v. St. John's, 17 
 Wis. 157, 98, 115, 118 127 
 
 Chambers v. Brigman, 68 N. C. 
 
 274, 18a 
 V. Shaokell, et als. 6 C. 
 
 & P. 475, 51 
 
 V. Hunt, 3 Harr. (N. J.) 
 339, 24, 27, 161, 165, 189 
 Christ & Halderman Brindle's 
 
 Extra. 2 Pa. 251 73 
 
 Chesley v. Chesley, 37 N. H. 229, 
 
 26, 98, 126, 167, 188. 
 Chamberlain v. Peop, 23, N. Y. 
 
 85 52, 
 
 Choteau v. Steamboat Co. St. 
 
 Anthony, 12 Mo. 489 41 
 
 Churchville v. Lee, 77 N. C. 431 127 
 Christian v. Manderson, 2 Pa. 363 129- 
 (Jhaifee v. U. S., 18 Wall. 516, 63 14» 
 
TABLE OF CASES CITED. 
 
 243 
 
 'Chew V. Close. 9 Phil. (Pa.) 211 132 
 •Chinn c. Hamilton, 1 Hemst. 438, 70, 97 
 
 €hild r. Allen, 33 Xt. 475, 96, 97 156 
 
 ■Chappman r. Eamson, 8 Q. B. 673 109 
 V. Pickersnill, 2 Wils. 
 
 147, 50 
 
 c. Sloan, 2 N.H. 233 113 
 c. Doughty, 18 N. J. 
 
 L. 3 115 
 i: Emden, 9 C. & P. 712 
 
 117, 142, 147 
 V. Morgan, 2 Greene. 
 
 274 ' 115 
 •Church V. Mumford, 11 Johns. 
 
 479 146 
 
 r. Powell, 49 Me. 367 65 
 
 V. Fagin, 43 Mo. 123 21 
 
 'Cilly V Janness, 2 N. H. 89 113 
 
 •Cilleman r. Ball, 49 Mo. 249 35 
 
 City r. Brinkmeyer, 12 Ind. 349 129 
 
 of Eliz. V. Force, 2 Stew 590 68 
 
 B'k. of Macon v. Keat, 57 Ga. 
 
 283 35 
 
 Clark I'. Canfield, 2 McCarter, (N. 
 
 J.) 119 72 
 
 V. West, 23 Mich. 242 161 
 
 V. Tuber, 28 Wt. 222 41 
 
 V. Kobinson, 5 B. Mon. 55 32 
 
 V. Warner, 6 Conn. 355 140 
 
 V. Boardman, 42 Yt. 667 150 
 V. Canfield, 15 N. J. Eq. 
 
 119 69 
 
 V. Laotte, 15 Beav. 240 58 
 
 V. Lagans, 2 Man. & Gr. 167 3 
 v. Harwood, 15 How. Pr. 
 
 470 130 
 
 V. Yorce, 19 Wend. 232 37 
 
 •Clay V. Sweet, 1 J. J. Marsh, 194 148 
 
 •Clannes v. Perry, 1 Camp. 8 62 
 
 ■Clayers & Morse v. Ferris, 10 Yt. 
 
 112 28 
 
 •Claflin V. Griffin, 8 Boasw. 689 27 
 
 Clap V. Braneagham, 9 Cow. 530 41 
 
 Clammer v. State, 9 Gill. 279 57 
 Clearwater v. Meredith, 1 Wall. 
 
 25 3, 99 
 
 Cleworth v. Pickford, 7 Mees. & 
 
 W. 314 143 
 
 ■Clem V. E. R. 9 Ind. 488 46 
 
 ■Clements v. Moore, 6 Wall. 299 94 
 £!lift V. Stockton, 4 Litt. (Ky.) 
 
 414 40 
 
 ■Click V. State, 3 Tex: 282 169 
 
 ■dough V. Shepherd, 31 N. H. 490 78 
 
 -Clopton V. Morris, 6 Leigh, 278 85 
 ■Olymer v. Thompson, 7 Serg. & R. 
 
 180 57 
 
 <:!oale V. R. R. Co., Mo. 235 17 
 
 •Congreve v. Morgan, 18 N. Y. 84 53 
 
 Condit V. Neighbor, 13 N. J. L.83, 141 
 
 Cone V. Billiard, 9 Mass. 270 57 
 
 Conrad v. Williams, 6 Hill. 444 36 
 
 Conway v. Shelton, 3 Ind. 344 41 
 
 Cont. Ins. Co. 2 Weekly, N. 277 47 
 
 Concord v. Mclntire, 6 N. H. 527 96 
 
 Cook. 11. Robinson, 42 Iowa. 474 37 
 
 V. Brown, 39 Me. 443 42 
 
 V. Wildes, 5 B. & B. 328 122 
 
 V. Hill, 3 Sandf. 341 121 
 
 V. Ritter, 4.E, D. Smith. (N. Y.) 
 
 253, 183 
 
 V. State, 26 Ga. 593 78 
 
 Coombs V. Rose, 8 Blackf. 155 122 
 
 Cook V. Knapp, 4 Seld. 402 46 
 
 Cooper V. Dedrick, 22 Barb. 516 66 
 
 V. Hermance, 3 .Johns. 318 1 
 
 V. Galbath, 3 Wash. 546 57 
 
 V. Barber, 24 Wend. 
 
 105 120, 121 
 
 V. Wakely, 3 Car. & P. 474 
 27, 1U7, 108, 109, 111,121, 
 124,125,142, 146, 188 
 Copeland v. New Eng. Ins. Co. 
 
 22 Pick. 135 85 
 
 Cope V. Cope, 1 M. & Rob. 269, 5 
 
 C. &P. 604 52 
 
 Castigan v. the Mow. & Hud. R. R. 
 
 Co. 2 Denio. 616 14 
 
 Cotton V. James, 3 Carr. & P. 505 
 
 27, 108, 109, 111, 112, 142, 150, 
 188 
 V. Wood, 8 C. B. N.C. 568, 188 
 Cotheal v. Talmadge, 1 B. D. Smith. 
 
 573 21 
 
 Cott V. Beaumont, 31 Mo. 118 18 
 
 Conjollee v. Ferris, 26 Barb. 117 52 
 Courtenay v. Carle, 10 C. B. 73 146 
 Coulter V. Exp. Co. 5 Lans. 67 64 
 
 c. Lower, 35 Ind. 285 152 
 
 Courtwright v. Slaggers, 15 Ohio St. 
 
 ,511 207 
 
 Courier v. Graham, 1 Ohio. 347 147 
 Comen v. Balkom, 3 Pick. 281 56 
 
 Cowin V. Toole, 31 Iowa. 513 1 
 
 Co.xhead v. Huish, 7 C. & P. 63 124, 
 
 125, 144 
 Cox V. Yickers, 35 Ind.' 27 118, 142 
 Crerar v. Sodo, 3 C. & P. 10 168, 193, 
 
 202, 203 
 Craig V. Tenn., C. & Mar. 43 127 
 
 V. Perois, 14 Pick. 150 21 
 
 Coffin V. Knott, 2 Greene (Iowa,) 
 
 582 5 
 
 V. Coffin, 4 Mass. 1 122 
 
 V. Anderson, 4 Blackf. 395 153 
 Cofield V. McClelland, 16 Wall. 
 
 331 56 
 
 Cogell ■;;. Gett, 1 Coldw. (Tenn.) 
 230 152 
 
244 
 
 TABLE OF CASES CITED. 
 
 Coleman c. Hagerman, 5 Ci*y H. 
 
 E. (N. Y.)63 103,192 
 / . Toop, Wright. (0.) 
 
 315 129 
 
 r. Bean, 14 Abb. Pr. 38 70 
 
 Colson V. State, 7 Blackf. 590 78 
 
 Collins V. Dorchester, 6 Cush. 396 U 
 
 V. Perkins, 31 Vt. ()21 151 
 
 Colestone v. Hiscolbs, 1 M. &. K. 
 
 301 161 
 CoUingbourne v. Mantell, 5 Mes. 
 
 & W. 289 143 
 Colwell V. Brower, 75 111. 516 167, 188 
 
 Com V. Hill, 14 Mass. 207 171 
 
 V. Moore, 9 Mass. 402 171 
 
 V. Eastman, 1 Cush. 189 169 
 
 V. Miller, 5 Dana, 320 173 
 
 r. I-Iorton, 9 Pick. 206 174 
 
 V. Clark, 14 Cray. 467 184 
 V. Dana, 2 Mete. (Mass.) 
 
 329 49 
 
 V. Kimball, 24 Pick. 336 49 
 
 ('. McClannahan, 2 Mete. 8 78 
 
 V. Hawkins, 3 Gray. 463 169 
 
 V. Maxwell, 2 Pick. 133 78 
 
 V. Mead, 10 Allen. 398 65 
 V. Fitchburg E. E. Co., 10 
 
 Allen. 189 78 
 
 V. Hill, 5 Gratt. 682 78 
 
 V. Hardiman, 9 Gray. 136 63 
 V. Judges of Com. Pleas, 1 
 
 Serg. & E. 192 57 
 Ex. Bank v. "West. S. C. 15 
 
 Abb. Pr. 319 130 
 
 V. Bradford, 9 Mete. 271 I.t 
 
 V. Dayly, 4 Gray. 209 21 
 
 V. Jones, 1 Leigh. 612 68 
 
 V. McOomb, 56 Pa. 436 53 
 
 V. Cathams, 50 Pa. 34 181 
 
 V. Bradford, 9 Pick. 271 29 
 
 V. Green, 2 Pick. 380 46 
 
 r. Long, 2 Va. Cas. 318 1'70 
 
 V. Foster, 3 Meto. (Ky.) 1 170 
 
 V. O'Brien, 119 Mass. 342 190 
 V. Goodenough, Thaoh. 
 
 (Mass.) Cr. Cas, 832 173 
 
 Comstock V. Smith, 20 Mich. 338 191 
 Comstock V. Huldyne, 8 Conn. 
 
 268 30 
 Comstock V. Dodge, 43 How. Pr. 
 
 99 40 
 Commis v. McDaniels, 7 Jones. 
 
 (N. C.) L. 107 53 
 
 Cromelien v. Brink, 29 Pa. 522 56 
 Crenshaw v. Davenport, 6 Ala. 390 38 
 Cravens v. Sanderson, 4 Ad. &B1. 
 
 666 18 
 Cross Keys Bridge Co. v. Eawlins, 
 
 3 Bing. N. C. 81 18 
 
 Crookshank v. Brown, 10 111. 75 142 
 
 Crowningshield v. Crowningshield, 
 
 2 Gray. 524 65 
 
 Crass V. Smith, 7 East. 246 9 
 
 Curtis V. Wheeler, et al. 4 0. & P. 
 
 198 27, 96, 127, 163 
 
 Cutter V. Thomas, 24 Yt. 647 207, 187 
 V. Wright, 22 N. Y. 472 
 
 60 58 
 
 Cumb. C. I. Co. V. Parish, 42 Md. 
 
 598 58 
 
 D. 
 
 Dale V. Halsey, 16 Johns. 40 141 
 
 Dana I). Bryan, IGilman. 104 4 
 
 Danet--. State, 22 Ala. 33 42 
 
 Dassler v. Wilsey, 32 Mo. 498 42 
 
 Davis V. Evans, 6 C. & P. 619, 
 
 139 140, 142 
 
 Davidson v Thornton, 7 Barr. 128 44 
 V. Stanly, 3 Sc. N. S. 35 
 V. Henop, 1 Cr. C. Ct. 280 
 
 18, 8T 
 Davis .f. Ashton, 1 Man. Gr. & Sc. 
 
 746 ' 1 3 
 
 V. Gary, 15 Q. B. 418 3 
 
 V. Calvert, 5 Gill. &. J. 265 37 
 V. Perley, 30 Cal. 630 40^ 
 
 V. Talcott, N. Y. Ct. Ap. 119 
 V. State, 14 Ga. 101 40, 169 
 
 V. Elliot, 15 Gray, 90 41 
 
 V. Strolen, 17 Iowa, 521 42 
 
 V. Steimer, 14 Pa. 275 85 
 
 V. Evans, 6 C. & P. 619 124 
 
 V. Cooper, 6 Mo. 148 151 
 
 V. Case, 1 Gratt. (Ya.) 557 197 
 V. Mason, Pick. 136 114, 167 
 r. Jenny, 1 Mete. 221 21 
 
 Day V. Wadsworth, et als. 13 How. 
 
 570 163 
 
 V. Eaqnut, 14 Minn. 273 21 
 
 Dearmond v. Dearmond, 12 Ind. 
 
 455 37 
 
 Dean v. Thompson, 19 N. H. 290 53 
 Defimce v. Hazen, 1 Chand. (Wis.) 
 
 125 3T 
 
 De freest v. Bloomingdale, 5 Denio. 
 
 304 6T 
 
 DeGraff I). Carmichael, 13 Hun. 129 
 
 88 165 
 
 Dehil V. Enig. 65 Pa. 320 60 
 
 De Levellette v. Wejidt. 74 N. Y. 
 
 579 45 
 
 Delaplane v. Crenshaw, 15 Gratt. 457 
 
 40, 182 
 Dem Green v. Stillwill, 5 Halst. (N.J.) 
 
 60 154 
 
 Denithorn v. Denithorn, 15 How.Pr. 
 233 130 
 
TABLE .OF CASES CITED. 
 
 24& 
 
 Dem Hopper v. Demorest, 1 Zub. X. J. 
 
 5-'> 154 
 
 Demic r. Chapman, 11 Johns. 132 128 
 Den V. Morse, 12 X. J. L. 331 1,5<) 
 
 Denkers v. Temple, 41 Pa. 234 40 
 
 Dennison c. Page, 29 Pa. 436 52 
 
 Denkens i'. Samuel, 10 Rich. (S. C.) 
 
 06 52 
 
 Denny v. Booker, 2 Bibb. 427 24 
 
 Dennis r. Dennis, 1.") iid. 73 92 
 
 Denraan v Bloomer, 11 111. 177 42 
 
 Develle v. Roath, 29 Ga. 733 5 
 
 Deversy ( . Kellog, 44 111. 114 41 
 
 Devizes v. Clark, 3 Ad. & El. 506 34 
 Devendorf c. Werf, 42 Barb. 227 
 
 99 142 
 
 Dibble v. Duncan, 2 ]\[cLean, 553 143 
 
 r. Kempshall, 2 Hill. 124 132 
 
 V. Pray A: Co. v. Duncan et 
 
 als. 2 McLean, 554 130, 133 
 
 Dicker r. Jackson, 6 >[an. Gr. & S. 
 
 114 2 
 
 Diekerson v. "Wason. 48 Barb. 412 55 
 Dickey v Schreider, 3 Serg. ct R. 
 
 413 ' 85 
 
 Dickinson v. Brick, 3 X". J. L. 
 
 [2 Penn.] 094 3 
 
 c. Johnson, 7 Geo. 488 62 
 r. Nichols, 39 111. 372 63 
 i: Xeale, 1 Mees. & AV. 
 
 556 143 
 
 V. Evans 6 T. R. 57 74, 76 
 Dieterich v. Shaw, 43 Ind. 175 152 
 
 Dill r. State, 34 Ohio St. Rept'r. 
 
 693 185 
 
 Dimmett i: Eskridge, Munf. 308 2 
 
 Dixon V. Columbus R. R. Co. 3 Biss. 
 
 137 13, 47 
 
 Dobbins i: Asmalt, 20 Ark. 619 185 
 Dobbs /;. Justice, 17 Ga. 56 
 Dodge V. Dunham, 41 Ind. 188 82 
 
 Doe. d. Bather v. Brayne. 5 Man. Gr. 
 
 & S. 655 167 
 
 c. Roe, 1 Ga. Dec. P. 140 160 
 Smith, i". Smart, M. & R. 475 158 
 V. Hicks, 205 
 
 Caldcott V. Johnson, 7 Man. 
 
 & Gr. 1060 15 
 
 Gord V. Xeeds, 2 M. & W. 
 
 129 135 
 
 V. Jesson, 6 East. 85 69 
 
 Knight V. Napean, 5 B. & Ad. 
 
 86 73 
 
 r. Rin, 4 Blackf. 263 85 
 
 Warren v. Bray, M. & M. 166 
 
 94 156 
 
 Bridges v. Whitehead, 8 Ad. 
 
 & El. 571 75, 76 
 
 Worcester Trustees v. Row- 
 land's, 9 0. & P. 734 118 J 
 
 Trustees & C. R Rowland, 
 
 9 C. & P. 734 147 
 
 ('. Rowland, 9 0. & P. 735 20 
 
 Chamberlayne v. Floyd, 
 
 Peck's Ev. 5 ' 153, 188. 
 Wollaston v. Barnes, M. & 
 
 R- 386 158, 15T 
 
 Pile r. AYilson, 1 M. ct R. 
 
 :^23 161, 20.> 
 
 V. Corbett, 3 Camp. R. 368 
 
 27,159 
 Tucker r. Tucker, M. &M. 
 
 536 95, 157, 158- 
 
 Dollarhide v. Muskatine Co., 1 
 
 Greene. 158 55, 
 
 Dooley v. Stipp, 26 111. 86 94 
 
 Doolittle V. Green. 32 Iowa, 123 3 
 
 Doonan v. iLitchell, 26 Ga. 462 41 
 
 Dorr V. Pisher, 1 Cush. 227 21 
 
 Darmandy f. State B'k. 3 III. 236 
 
 ^ , 85, 88 
 
 Doughty V. Hope, 3 Denio. 595 60 
 
 Douglas V. Satterlie, 11 Johns. 21 8, 9 
 
 v. Wickwise, 19 Conn. 
 
 489 53, 156 
 
 v. State, 3 Wis. 820 171 
 
 Downey v. Day, 4 lad. 53 
 
 103, 114 152. 
 Dawner v. Stains, 5 Wis. 159 129 
 
 Dows V. McMichael, 6 Paige, 139 56 
 Dowling V. Pinigan, 1 C. & P. 
 
 587 193 
 
 Dreaman v. Stifel, 41 i[o. 184 42 
 
 Dutch. Co. Mut. Ins. Co. ?•. Hatch- 
 field, 73 N. Y. 226 eg 
 Duel c. Fisher, 4 Denio. 515 37 
 Duffel c. Xoble, 14 Tex. 610 42 
 Dunlap V. Peter, 1 Cr. C. Ct. 403 87 
 Dunham v. Powers, 42 Tt. 1 122 
 Dunlay v. Peters, 1 Cr. C. Ct. 
 
 403 18 
 
 Duryee r. Lester, 75 X^. Y. 442 59 
 
 Dutchess Co. Ins. Co. v. Hatch- 
 field, 1 Hun. [N. Y.] 673 68 
 Duz V. Duz, 14 B. Mon. 481 33, 84 
 Dweller v. Roath, 29 Ga. 733 17, 165 
 Dwier v. Dunbar, 5 Wall. 318 41 
 Dye V. Mann, 10 ^[ich. 291 142 
 Dyell V. Pendleton, 8 How. 729 1 
 Dyster v. Battye, 3 Barn &Ald. 
 
 448 3 
 
 E. 
 
 Earh v. State, 55 Ga. 136 172 
 
 Eames v. Eames, 41 N. H. 177 165 
 
 East V. Capman, M. & M. 47 206 
 East Ind. Co. v. Glover, 1 Stra. 
 
 612 101 
 
 Edelin v. Edelin, 6 Md. 288 160 
 
246 
 
 TABLE OF CASES CITED. 
 
 Edsall et. alf. v. Cam. tt Am. R. 
 
 R. Go. 50 N.'J. 661 14 
 
 Edwards v. Jones, 7 C. & P. 663 
 
 168, 133, 145 
 
 V. State, 22 Ark. 253 182 
 
 V. Jones, 7 C. & P. 633 85 
 
 V. Stewart, N. Y. Supreme 
 
 Ct. 119 
 
 Bhrishman v. Roberts, 68 Pa. 309 33 
 
 Egleston v. Knickerbocker, 6 Barb. 
 
 458 46 
 
 Eldrid v. Oconto Co., 33 Wis. 133 162 
 Elder v. Rouse, 15 Wend. 220 149 
 
 Eli V. Tallman, 14 Wis. 23 41 
 
 Elkins V. State, 13 Ga. 435 • 78 
 
 Blkin V. Janson, 13 M. & W. 662 
 
 20 75 
 
 Ellis V. Garr, 1 Bush. 627 56 
 
 V. Ellis, 4 B. I. 110 140 
 
 Ellison V. Isles, 11 Ad. & Ell. 665 1 
 Elliott V. Smith, 1 Ala. 74 14 
 
 Elwood V. Lannor, 27 Md. 200 92, 94 
 Elwell, et als. v. Ohamberlin, 31 JST.Y. 
 
 611,21,86,88,927,167 
 V. Quash, Str. 20 8 
 
 Emerson v. White, 29 N. H. 482 64 
 Ensall V. Smith, 1 C. M. & R. 
 
 522 25 
 
 Ernig v. Dehl, 76 Pa. 350 160 
 
 Everton v. Mills, 6 Johns. 138 146 
 
 Evans v. George, 80 111. 51 35 
 
 V. Sanders, 8 Part. Ala. 497 59 
 V. Evans, 2 Coldw. 143 57 
 
 Ewing V. Gray, 12 Ind. 64 58 
 
 F. 
 
 Fay V. Decamp, 15 Serg. & R. 227 85 
 
 Fabor v. Cooper, 7 Wall. 565 41 
 
 Fairbanks v. Ker, 70 Pa. 86 64 
 
 Fairlie v. Denton, 3 Id. 103 207 
 Faith V. Mclntyre, 7 C. & P. 44 
 
 131 202, 203 
 
 Fall V. Simons, 6 Ga. 265 188 
 
 Falconer v. Smith, 18 Pa. 130 143 
 
 Paris V. Starkie, 9 Dana. 128 122 
 
 Farr v. Payne, 40 Vt 615 65 
 
 Farrell v. Brennan, 32 Mo. .328 160 
 Farnsworth v. Garrand. 1 Camp. 38 89 
 
 Faribault v. Hulet, 10 Minn. 30 78 
 
 Farley v. Budd, 14 Iowa. 289 57 
 Farmell, et als. v. Smith, 1 Harr. 
 
 [N. J.] 136 14 
 
 Farrow v. State, 48 Ga. 30 199, 196 
 
 Fass V. Edwards, 47 Me. 145 56 
 
 Pay V. O'Neal, 36 N. Y. 11 40 
 
 Fennan v. Blood, 2 Kans. 496 41 
 Feldeman v. Gamble, 20 N. J. Eq 
 
 494 ■ 47 
 
 Fenn d Wright v. Johnson, Ad. on. 
 
 Ej. 250 157 
 
 Ferrier v. Wood, 9 Ark. 85 146 
 
 Feagin v. Pearson, 42 Ala. 332 119 
 
 Field V. Holland, 6 Cranch. 8 67 
 Fish V. Travers, 3 C. & P. 578 
 
 111, 152 
 First Nat. B'k. v. Hogan, 47 Mo. 
 
 472 3 
 V. Fourth Nat. B'k. 
 
 77 N. Y. 330 66 
 V. Morgan, 72 N. 
 
 Y. 593 67 
 V. Com. 14 Minn. 
 
 77 68 
 
 Fisher v. Lamunda, 1 Camp. 190 89 
 
 Fitch V. Fitch, 3 J. & Spr. 3J32 142 
 
 Finley v. Simpson, 2 Zab. 331 69 
 Finch V. Alston, 2 Stew. & Part. 
 
 [Ala.] 83 150 
 
 Fidler v. Smith, 10 Iowa, 587 155 
 
 Fife V. Com, 28 Pa. 429 49 
 
 Findley v. People, 1 Mich. 234 170 
 
 Finn v. Wharf Co. 7 Cal. 253 58 
 
 Flemming v. Hoboken, 11 Vr. 270 58 
 Flinn v. Andrews, 9 Ired. IN. C] 
 
 L. 328 151 
 
 Plagg V. Bonnell, 2 Stock. 85 188 
 
 Fletcher v. State, 12 Ark. 168 173 
 
 Florentine v. Barton, 2 Wall. 210 56 
 
 Flowers v. Helm, 29 Mo. 324 40 
 F. & M. Ins. Co. V. Bois, 6 Duer. 
 
 583 68 
 Farshee v. Abrams, 2 Iowa, 571 34 
 Fowle V. The Com. Coun. of Alex- 
 andria, 11 Wheat. 175 85 
 Fowler v. Byard, 1 Hemst. 21.3 
 
 102, 120 
 
 Pordham v Smith, 46 N. Y. 683 37 
 
 Fowls V. Brown, 30 N. Y. 20 122 
 
 Faith V. Mclntyre, 7 0. & P. 44 144 
 Forbes v. Church, 3 Johns. Cas. 
 
 159 85 
 
 V. Moffatt, 18 Yes. Jr. 384 67 
 
 Ford V. Niles, 1 Hill. 300 28, 82, 
 
 83,84 
 V. Simmons, 13 La. Ann. 
 
 397 11 
 Fowler v. Sargeant, 1 Grant. Pa. 
 
 758 62 
 
 V. Arnold, 25 111. 284 140 
 V. Castor, M. & M. 241 
 
 107, 142, 165 
 
 Fox V. Hilliard, 35 Miss. 160 21 
 
 Foster v. Rockwell, 104 Mass. 167 59 
 
 Freeh v. R. B. 39 Md. 574 21 
 
 Frink v. Potter, 17 111. 406 64 
 
 Frank v. Frank, 2 M. & Rob. 314 3 
 
 Frame v. Badger, 76 111. 441 35 
 
 Fredericks v. Gilbert, 8 Pa. 454 152 
 
TABLE OF CASES CITED. 
 
 247 
 
 Fredericks r. Gaston, 1 Greene. 
 
 [Iowa.] 401 42 
 
 Freeman c. C'urran, 1 Minn. 169 
 
 •") 130 
 
 r. Paul, 3 Greene. 260 67 
 
 Freleigh r. Ames, 31 Mo. 253 18.5 
 
 Franlventhal c. Camp, .55 111. 169 148 
 Freeland r. Heron, 7 Cranch. 147 73 
 Ponriner c. Cyr, 64 :Me. 32 68 
 
 Frothingliam v. Everton, 12 N. H. 
 
 239 142 
 
 Franks v. State, 1 Greene, 541 85 
 
 Fry r. Hinkly, 18 :\[e. 320 40 
 
 ('. Bennett, 3 Bosw. 290 120, 168 
 Fowler i: Byard, 1 Hemst. 213 139 
 V. Castor, 1 Bsp. 103 138, 139 
 FuUerton'c. li'k. U. S. 1 Pet. 607 
 Fuller V. Talbot, 23 111. 357 183 
 
 G. 
 
 Gale r. Caperer, 1 Ad. & E. 102 '.III 
 c. ].ewis. 9 A. B.73 96 
 
 Galewood r. Bolton, 48 ]Mo. 78 21 
 
 Gallinare i\ Ammerman, 39 Ind. 
 
 323 152 
 
 Galilland v. ]\Eartin, 3 McLean, 490 
 
 69 "2 
 
 Gambling v. Price, 2 Nott. & M. 
 
 [S. C] 138 116, 150 
 
 Gardiner v. Buckle, 3 Cow. 120 97 
 
 v. Dutch, 9 Mass. 427 161 
 
 r. Astor, 3 Johns. Oh. 53 67 
 
 r. Humphrey, 10 Johns, 
 
 53 57 
 
 r. Peop, 6 Park. C. E. 
 
 156 62 
 
 V. Gardiner, 11 Johns. 
 
 47 84 
 
 Garneharts /-. U. P. 16 Wall. 162 56 
 Garrord v. State, 50- Mass. 147 172 
 
 Garme v. Pomroy, 11 Iowa. 149 155 
 Garding v. Walter, 29 :Mo. 426 73 
 
 Garrolson r. Pegg. 65 111. 195 35 
 
 Gasset V. Howard, 10 Q. B. 411 61 
 
 Gates V. Salmon, 46 Cal. 361 1 
 
 r. ATard, 17 Barb. 424 16 
 
 r. Preston, 41 N. Y. 113 119 
 
 Ganse v. City of Clarksville, 18 Lar. 
 
 Eeg. 479 55 
 
 Gay V. Southworth, 113 Mass. 333 3 6 
 Gavnor v. Old Cal. E. E. 100 Mass. 
 
 208 148 
 
 Geach r. Ingals, 14 M. & W. 95 9 Jur. 
 
 691 20,48 
 
 V. Ingersall, 14 Mees. & W. 
 
 95 16' 
 
 Gillispie v. Buttle, 15 Ala. 2(6 ■) 
 
 Gilena V. Carwith, 48 111. 423 55 
 
 Gentry v. Berges, 8 Blackf. 261 42 
 
 Gerach v. Boyenne, Feb. 1877, 
 
 N. J. 154 
 
 Gilkey v. Peeller, 22 Tex. 663 40 
 
 Gilmore v. Wilbur, 18 Pick. 519 21 
 Girrard v. Willet, 4 J. J. Marsh, 
 
 628 119 
 
 Gibson v. Crehore, 5 Pick. 146 67 
 
 Gilispie v. Batter, 15 Ala. 276 32 
 
 Gilbert v. Kennedy, 22 Mich. 117, 
 
 36, 45 
 V People, 1 Denio, 41 120 
 
 Glyan v. Thorp, 1 Barn. & A. 
 
 153 56 
 
 Glezen v. Rood, 2 Moto. 490 142 
 
 Glenn v. Farmers B'k. of N. C. 
 
 68 Ga. 191 34 
 
 (Jladstone r. Hew. 1 Crompt & J. 
 
 568 20 
 
 Glover V. ]\roneywell, 6 Pick. 222, 
 
 86 141 
 
 (Jobor V. Hagoman, 26 HI. 438 42 
 
 Gorden v. Tuber, 5 Vt. 103 35 
 
 r. Gordon, 13 Mo. 215 40 
 
 Goram v. Sweating, 3 Saund. 205 2 
 Gough i\ Cram, 3' Md. Ch. 119 21 
 
 V. Bryan, 2 Mees. & W. 
 
 779 8, 183 
 
 Good V. :*rylin, 13 Pa. St. 538 193 
 
 Goss r. Turner, 21 Yt. 437 135 
 
 Gower c. Dell, 3 Iowa. 338 40 
 
 Goodrich/;. Reynolds, 31 111. 490 143 
 Goodwin v. State, 16 Oh. St. :!44 171 
 Goodchild ('. Pledge, 1 M. & AV. 
 
 463 5 Dowl. P. C. 89 28 
 
 Goodpaster v. Yooris, 8 Iowa. 344 133 
 Gould V. Moore, 40 N. Y. Superior 
 
 Ct. 387 183 
 
 V. Kelly, 16 N. H. 551 78 
 
 Goldsburg v. Slattervill, 3 Bibb 345, 
 
 114, 103, 152 
 Goodtitle v. Braham, 4 T. E. 497, 
 
 205 166 
 
 Grant r. Morse, 22 N. Y. 323 155 
 
 Graff V. Potts, &c. E. R. Co. 31 Pa. 
 
 489 ■ 42 
 
 Grand Trunk E. E. Co. v. Nichols, 
 
 18 Mich. 170 42 
 
 Graham v. Gantier, 21 Tex. Ill 118 
 Gragge v. AVagner, 77 N. 0. 246 184 
 Gragg V. Warner, 77 N. C. 246 63 
 
 ■Graves v. Moore, 1 T. B. Mon. 341 144 
 Graver v. Fell, 7 W. Notes, Cas. No. 
 
 27 (Pa.) 1 Barr. 126 61 
 
 Granger v. Buffalo, 6 Abb. N. C. 
 
 239 , 55 
 
 Griffin v. Jackson, et als. 11 Vr. 441, 
 
 99.129, 130 
 
 Gray v. Southworth, 113 Mass. 333 21 
 V. Gardiner, 17 Mass. 188 21 
 
 17 
 
248 
 
 TABLE OF CASES CITED. 
 
 Gray v. Haifj, 20 Beav. '231 62 
 
 (^odie V. McDonald, 78 111. C05 65 
 
 Godfrey v. State, 31 Ala. 323 eS 
 
 Greer v. Nourse, 4 (_'r. 0. C. 527 163 
 
 Gregg V. Jamison, 55 Pa. 468 53 
 Greenwood v. Lowe, 7 La. An. 
 
 197 57 
 Gregary v. Baugh, 4 Rand. Va. 
 
 611 64 
 Great West R. R. Co. v. Bacon, 3 111. 
 
 347, 14, 75 
 
 V. Hanks, 36 
 
 111. 281 78 
 
 (:Jroams v. State, 12 AVis. 591 31 
 
 Green v. Caulk, 16 Md. 566 37 
 
 v. State, 41 Ala. 419 50 
 
 ( . Green, 3 0. 278 154 
 
 , . Hume. 3 T. R. 301 100 
 
 ,:. Hill, 3 Ex. 801 96 
 
 Greenleaf v. B. B. 29 Iowa. 47 64 
 
 V. Birth, 5 Pet. 132 37 
 
 Grimes r. Coyle, 6 B. Mon. 301 122 
 
 V. Kimball, 3 Allen, 518 62 
 
 Gross r. Turner, 21 Vt. 438 18, 28 
 
 Graft r. Weakland, 34 Ind. 304 42 
 
 Gronley v. Kinley, 66 Pa. 270 159 
 
 Grunnell v. Warner, 21 Iowa. 11 21 
 
 Grubb V. Remmington, 7 Wis. 349, 
 
 5, i:;o 
 
 Guelle V. Swan, 19 Johns, 381 64 
 
 Guess V. State, 6 Ark. 147 171 
 
 Gulick V. Gulick, 12 Vr. 13 145 
 
 V. Grover, 4. Vr. 473 33 
 
 Gnykowoki v Peop., 2 111. 476 174 
 
 Guy V. Tarns. 6 Gill. 82 4(1 
 
 V. Washburn, 23 Cal. Ill 56 
 
 H. 
 
 Hager v. Thompson, 1 Black. SO 57 
 
 Hageman v. Salisbury, 74 Pa. 280 57 
 
 Hagues v. Thomas, 7 Ind. 38 32 
 
 Hagen r. H-endry, 18 i\Id. 177 120, 121 
 
 Hair v. Little, 28 Ala. 236 5H 
 
 Hall V. Weir, 1 Allen. 261 40 
 
 V. Calvert, 6 Irish. L. R. 194 78 
 
 ct als. V. W'earp, 2 Olio. 732 IHS 
 
 V. Ck-mentp, 41 N. H. 166 70 
 
 ^. Kellog, 16 Mich. 135 .60 
 
 V. Adams, 1 Aik. Vt. 166 43 
 
 Haldane v. ITarvcy, 4 Burr. 2484 (12 
 
 Haley v. Caler Minor. 63 93 
 
 Halsey v. AVood, 55 Mo. 252 159 
 
 Hallock V. Powell, 2 Cai. 216 L46 
 
 Hale V. Lawrence, 2 Zab. 79 99 
 
 V. Mathews, 10 Irish. L. 317 149 
 
 V. Smith, 78 N. Y. 483 148 
 
 V. Hazelton, 21 Wis. 620 21 
 
 Hain v. Rogers, 6 Blackf. 559 115 
 
 Hannen v. Edes, 15 Mass. 351 105' 
 
 Hammond v. Coles, 1 M. G. & Sc. 916 3 
 Hamilton v. People, 27 Mich. 193, 
 
 5,43 
 Ilansboard v. Thorn, 2 Lieigh. 147 85 
 Hankin 5. Squires, 5 Bess. 186 21 
 
 Harding v. Lifft. 75 N. Y. 461 45 
 
 V. Craigen, 8 Vt. 509 14 
 
 Harden i'. Branner, 25 Iowa. 364 34 
 Hargthorp v. Milforth, Cro. Eliz. 
 
 318 8 
 
 Hartwell v. Root, 19 Johns. 445 56 
 Harned v. Manning, 12 Vr. 277 60 
 
 Harrington et als. r. Bishop, &c., 4 
 
 Bing. N.C. 77 18 
 
 Harker v. Brink, et als. 4 Zeb. 343 2 
 Harman v. State, 11 Ind. 311 17 L 
 
 Harlett v. Hewlett, 4 Cdw. Ch. 7 58 
 Harwood v. Smithurst. 29 N. J. L. 
 
 195 162 
 
 V. Rainsey. 15 Serg. & R. 
 
 31 38 
 
 Harlem v. Emort, 41 111. 320 86, 141 
 
 Hart V. Rose, 1 Hemst. 238 27 
 
 u. Fitzgerald, 2 Mass. 509 161 
 
 L'. Reed, 1 B. Mon. 166 121 
 
 V. Bodley Hard. (Ky.) 98 64 
 
 ITarnett v. Johnson, 9 C. & P. 
 
 206 110, 142 
 
 Harris v. Rosenburg, 43 Conn. 227 48 
 
 V. Shoutz, 1 Mont. 21 23 
 
 L'. Hunt, 11 Ind. 126 167 
 
 ('. Story, 2 E. D. Sem. 363, 
 
 59,65 
 Harney v. Thornton, 14 111. 217 64 
 
 ('. Elithorpe, 26 III. 418 87 
 
 r. State, 40 Ind.' 516 182 
 
 V. Skepworth, 6 Gratt. 393 14 
 v. Thorp, 28 Ala. 250 92 
 
 V. Mitchell, 2 M. & R. 366 
 
 188, 192 
 Harrison's Case, Rose. Crim. Ev. 
 
 57, 77 
 r. Gould. 7 C. & P. 580, 
 
 124, 125, 145 
 V. Mcintosh, 1 Johns. 
 
 380 161 
 
 Hare r. Mu:>n, 1 Esp. 103, 138, 142, 
 
 165, 168 
 /■. Young, 9 Ga. 359 41 
 
 Ilargis V. Ayers, 8 Ycrg. (Tenn.) 
 
 467 " L40 
 
 Hastings v. Lusk, 22 Wend. 410, 
 
 120, 122 
 r. Palmer, 20 AVend. 225 82 
 Hafler v. Carpenter, 3 C. B. (N. S.) 
 
 172 135 
 
 Hatch ". Spravin, 11 Me. 354 40 
 
^fA^LE' OF tiA^i^ diTRD'. 
 
 'M 
 
 fiatfield r. L'ent. K. Pi. Co. 5 Dutch 
 
 571 
 
 Hatchbergcr c. Ins. Co. 5 Biss. 
 106 
 
 Haynes r. Thomas, 7 Ind. 38 5 
 
 Haycraft i\ Creasy, 2 Bast, 92 
 Haywood v. Chcstiicv, 13 Wend. 
 
 495 
 Hays t. State, 58 Ga. 36' 
 r. Harin. 12 Iowa, 61 
 r. (iribble, 3 B. ilon. 106 
 V. Ball, 72 X. Y. 418 
 c. Paul, 51 Pa. 134 
 Havward r. Eadcliff. 4 P. & F. 
 
 500 100, 
 
 V. Oriisby, 11 AVis. 3 
 Heath v. Williams, 25 'SIq. 209 
 Head r. Head, 1 Sim. fr S. 150 
 ^ Hecker v. Hopkins, 16 Abb. Pr. 
 301 
 Hector V. Glasgow, 79 Pa. 79 
 Hick V. Shener, 4 Serg. & E. 249 
 Hedgpith v. Eobinson, 18 Tex. 
 
 858 
 Heffron v. State, 8 Fla. 73 
 Heineman et. als. v. Heard, et. als. 
 62 N. Y. 455 7, 21, 
 
 Heiner v. Wilcox, 1 Ind. 29 
 Heim v. Anderson, 2 Duer. 318 
 Hicks V. Com. 26 Pa. 513 
 Henson v. Morton, 2 Ashm. (Pa.) 
 
 150 
 Hen V. Nicks, 3 Dowl. 163 
 Henche v. People, 16 Mich. 46 
 Henry v. State, 33 Ala. 389 
 Hendrick v. State, 6 Tex. 341 
 Hinemann v. Heard, et als. 62 
 
 N. Y. 456, 87, 118. 
 
 Henderson v. Casbel, 3 Cr. Ct. 365, 
 
 18, 21, 33, 43, 87, 
 
 Hepburn v. Dubois, 12 Pt. 375 
 
 Herndon v. Bartlett, 4 Port. (Ala.) 
 
 481 
 Herney v. Kerr, 8 Bos. 194 
 Herriter v. Porter, 23 Gal. 385 
 Hyen v. Blair, 62 N. Y. 18 
 Hickey v. Eyan, 15 Mo. 62 
 Hicks V. Hayward, 4 Heisk. 598 
 Higgs V. Shehn, 4 Fla. 382 
 Hill V. Nichols, 5 Ala. 336 
 
 V. Fox, 1 F. & F. 136 92, 
 
 V. Cooley, 46 Pa. 259 
 V. Gandtield, 56 Pa. 454 
 Kite V. Blanford, 45 HI. 9 
 Hixv. Whettemore, 4 Mete. 545 
 Hodges V. Ackerman, 11 Ex. 214, 
 ■ ° 183, 
 
 151 
 
 21 
 . 43 
 
 58 
 
 140 
 .35 
 
 6.i 
 64 
 37 
 40 
 
 133 
 
 42 
 52 
 52 
 
 120 
 
 37 
 
 143 
 
 42 
 196 
 
 165 
 151 
 151 
 173 
 
 146 
 135 
 171 
 169 
 171 
 
 134 
 
 160 
 32 
 
 151 
 37 
 
 155 
 33 
 42 
 61 
 85 
 21 
 
 142 
 
 144 
 41 
 41 
 66 
 
 189 
 
 Hodges V. Hoden, 3 Gamp. R. 656 27 
 
 Holder, 3 Gamp. 366, 
 
 101, 102, 103, 107, 128, 150, 188 
 Hogencamp v. Ackerman, 4 Zab. 
 
 133 99, 130 
 
 Holmes v. Watson, 28 Pa. 457 41 
 
 Holbrook v. Nichols, 36 111. IGl 159 
 Holt V. State, 13 Ga. 187 173 
 
 Hoi den v. State, 5 Ga. 441 34 
 
 Hollenback ?>. Eowley, 8 Allen, 473, 
 
 116 
 Homan v. Thompson, 6 G. &. P. 
 
 151 
 
 Grant. (Pa.) 
 
 129, 144 
 
 65 
 53 
 
 153 
 
 40 
 41 
 
 58 
 
 59 
 
 66 
 
 172 
 
 34 
 
 17 
 Hood V. Hood, 
 
 229 
 Hooper v. Goodwin, 48 Me, 79 
 Hopkins v. Smith, 3 Barb. 51 
 
 V. Shelton, 37 Ala. 306 
 V. Richardson, 9 Gratt. 
 485 
 Hope I'. Lawrence, 50 Barb. 258 
 Hopper V. State, 19 Ark. 143 
 Harry v. Glover, Riley (S. G.) Eq. 
 
 53 
 Horn V. Pullman, 72 N. Y. 269 
 V. State, 1 Kan. 42 
 V. Eberhart, 17 Ind. 118 
 Horan v. Weiler, 41 Pa. 470, 13, 
 
 14, 47, 58, 75 
 Honck V. Loveall, 3 Md. 63 115, 116 
 Howell V. Gom. 5 Gratt. 664 182 
 
 Hourtieum v. Schvoor, 33 Mich. 
 
 274 56, 60 
 
 Houghton V. Eees, .34 Mich. 481 56 
 Howland v. Fuller, 8 Minn. 50 
 
 161,162 
 How ('. Lawrence, 2 Zab. 99 2 
 
 Howell r. Peop. 5 Hun. X. Y. 
 620 
 V. Gom. 5 Gratt, 664 
 Howard v. Smith, 33 N. Y. Supe- 
 rior Gt. 124 
 V. Black, 42 Vt. 258 
 V. Tyler, 46 Vt. 683 
 V. Wilcox, 47 Pa. 51 
 -/'. Throckmorton, 48 Gal. 
 482 
 Hoxie V. Green, 37 How. Pr. 97 
 Hubbard v. Hubbard, 6 Mass. 397 
 Huckman?). Firnie, 3 M. & W. 
 
 505 20, 48 
 
 Hudson V. Huslam, 7 Man. Gr. & S. 
 
 837 
 Huffman v. Ackley, 34 Mo. 217 
 Hughes V. State, 4 Iowa, 554 
 Hull V. Smith, 1 Duer. 654 
 Hunt '/'. Maybe, 7 N. Y. 256 
 
 V. Jones, R. L Feb. 1880, 
 
 8 Rept. 590 
 V. Stevens, 3 Taunt. 113 
 
 172 
 206 
 
 35 
 150 
 148 
 141 
 
 3 
 91 
 
 66 
 
 2 
 
 41 
 
 155 
 
 130 
 
 39 
 
 60 
 96 
 
SSd 
 
 tABLte Ot CASES CITfeB. 
 
 Hunt V. Gray, 35 N. J. L. 227 144 
 
 ■y. Chambers, 3 Harr. X. J. 
 
 339 162 
 
 Hunter v. Anthony, 8 Jones. N. C. 
 
 385 59 
 
 V. Am. Pop. Life Ins. Co. 
 
 4 Hun. 794 18 
 
 V. Akins, 3 Myl. & K. 135 58 
 Hungerford v. Barr, 4 Or. C. C. 
 
 349 163 
 
 Huntsman v. Nichols, 116 Mass. 
 
 521 184 
 
 Huntington v. Conkey, 33 Barb. 
 
 218, 21, 83, 91. 98, 118, 188, 126, 165 
 •llustings ('. Palrtier, 29 Wend. 
 
 225, 28 
 Hutchinson v. Chicago E. E. Co. 
 
 41 Wis. 541 16 
 
 Hutchinson v. Hamilton, 34 Tex. 
 
 290 21 
 
 llutley '('. Grimstone, 41 L. T. E. 
 
 N. S. 531 154 
 
 Hyde v. Heath, 75 111. 381 21 
 
 Hynds v. Hays, 25 Ind. 31 42 
 
 Havemyer v. Haveniycr, 11 J. & Spr. 
 
 506 37 
 
 Hawley v. Hatter, 9 Tiun. 134 37 
 
 Hawks V. Clearmont, 110 Mass. 
 
 110 64 
 
 Hazzard r. Haskell, 27 Me. 549 140 
 
 I. 
 
 Ingalls V. State, S. C. Wis. 1880 
 
 9 Eep. 695 37 
 
 Ingram v. Lawson, 2 M. & Eob. 
 
 253 199 
 
 Ills. Cent. E. E. Co. v. Allen, 39 111. 
 
 205 149 
 
 111. E. E. Co. V. Johnson, 34 111. 
 
 389 . 129 
 
 Innorrarity v. Bryne, 8 Port. (Ala.) 
 
 176 38 
 
 Jackson v. Cody, 9 Cow. 140 160 
 
 V. Allaway, 6 Man. & Gr. 
 
 950 2 
 
 V. Smith, 7 Cow. 717 38 
 
 V. Irvin, 2 Camp. 50 65 
 
 V. Vicksburg Co. 2 Woods. 
 
 141 68 
 
 V. B'k. of Marietta, 9 Leigh. 
 
 240 70 
 
 V. Blanton, 58 Tenn. 63 62 
 
 Jackson v. Hisketh, 2 Stark. 518, 
 
 100, 101, 102, 103, 103, 107, 
 128, 150, 188 
 V. Pittsford, 8 Blackf. 194, 
 
 98, 126 
 Jack V. Martin, 12 Wend. 316, 
 
 4, 70, 91 
 Jacob V. Harwood, 2 Ves. Sr. 267 9 
 V. U. S., 1 Brock. 520 85 
 
 James v. Salter, 1 M. & E. 505, 
 
 128 164 
 
 V. Morey, 2 Cow. 246 67 
 
 Jenkins t>. Pepoon, 2 Johns. (N. Y.) 
 
 Cas. 312 140 
 
 i;, Porkhill, 25Ind.-473 56 
 
 V. Long, 23 Ind. 460 57 
 
 V. Tobin, 31 Ark. 306 35 
 
 Jennings v. Paine, 4 Wis. 358 122 
 
 V. Maddox, 8 B. Mon. 
 
 430 96 
 
 Jewett V. Davis, 6 N. H. 518, 
 
 120 139 
 
 Jewell V. Davis, 6 N. H. 518 102 
 
 Joannes v. Bennet, 5 Allen, 169 62 
 Jackson v. Hasketh, 2 Stark. E. 
 
 518 27 
 
 Johnson v. Moss, 45 Cal. 515 38 
 
 V. Kendall, 20 N. H. 304 37 
 V. Johnson, 71 N. C. 402 35 
 V. Gorman, 30 Ga. 612 21 
 
 V. Bloodgood, 2 Cai. Cas. 
 
 303 68 
 
 V. Collins, 17 Ala. 
 V. Hasbrouck, 12 Jobns. 
 
 213 159 
 
 V. U. S., 5 Mass. 425 85 
 
 V. Com. 1 Duv. (Ky.) 244 171 
 V. State, 23 Ind. 32, 170 
 
 V. Jackson, 70 Pa. 164 159 
 V. Widner, Dud. (S. C.) 
 
 325 92, 167 
 
 Jones V. Briscol, 24 Mo. 498 42 
 
 V. Talbot, 4 Mo. 219 42 
 
 V. Ward, 10 Yerk, 160 46 
 
 V. Greaves, 26 Oh. State, 
 
 2 49, 71 
 
 V. Stevenson, 5 Munf. 1 3 
 
 V. Brown, 1 Bing. N. 0. 
 
 484 5 
 
 V. U. S. 7 How. 681 67 
 
 V. E. E. 107 Mass. 261 63 
 
 V. Ireland, 4 Iowa, 63 85 
 
 V. Vanzant, 2 McLean, 596 85 
 
 V. Brearly, 5 C. & P. 319 188 
 
 V. Lees, 1 H. & N. 194 2, 99 
 
 Jordon v. Sawyer. 1 Or. C. 0. 372 85 
 
 Josselyn v. McAllister, 22 Mich. 
 
 300 152 
 
SaSlE 5^ CASE^ CiTED. 
 
 251 
 
 Jourdan v. Boyce, 33 Mich. 302 144 
 Juaragui v. State, 28 Tex. 627 50 
 
 Jndah v. Vincennes Univers. 23 Ind. 
 
 127 
 10 
 63 
 63 
 
 114 
 14 
 
 Judg c. Kelly, 11 111. 211 
 Jiidd l: Fargo, 107 Mass. 265 
 Judge r. Cox, 1 Stark. U. 285 
 
 V. Stone, 44 N. H. 593, 18, 
 26, 29, 87 
 Johnson r. Pierce, 12 Ark. 599 
 
 K. 
 
 Kahl i. Love, 8 Yr. 5 146 
 
 Kane (. People, 3 Wend. 363 170 
 
 r. Hib. Mut. Fire Ins. Oo. 
 
 9 Yr. 446 51 
 
 I . Com. May 1869. Pa. 3:i 182 
 Kansas Pacific E. E. Co. v. Pointer, 
 
 14 Kan. 37, 33 
 r. Miller. 
 2 Col. T. 
 442, 69, 72 
 Katz r. Kuhn, N. Y. Com. Pleas, 
 
 April 1880. 8 Eept't. 632 92 
 
 Kcv c. Y'hittaker, 44 N. Y. 565 3 
 
 Kramer r. Stock, 10 AVatts. 115 99 
 
 Keinds c. Scull, 4 Com. B. N. S. 
 
 117 99 
 
 Kelly r. , 58 Pa. 302 56 
 
 r. Jackson, 6 Pet. 632 
 Keller v. X. Y. Cent. E. E. 24 How 
 
 Pr.l72 
 Kemp (;. McGerrigan. Tapp. (0.) 
 
 50 
 Kimball v. Adair, 2 Blackf. 320 
 Kennedy v. Clayton, 29 Ark. 270 
 V. Strong, 10 Johns. 289 
 
 149,153 
 V. Cunningham, 2 Mete. 
 (Ky.) 538 
 Kent V. Tyson, 20 N. IT. 121 
 
 V. White, 27 Ind. 390 
 Kendall v. Brown, 47 N. H. 186 
 Kenan v. Holloway, 16 Ala. 53 
 Kenyon v. Smith, 24 Ind. 11 
 Ketchen v. Ebert. 33 Wis. 611 
 Ketchun v. Express Co. 52 Mo. 
 
 390 
 Kimbro v. Hamilton, 28 Tex. 560 
 Kimball v. Aidair, 2 Blackf. 320 
 Kittridge v. Elliott, 16 N. H. 77 
 Kilgorei;. '""^ '^^ "^^ 
 
 40 
 42 
 5, 21 
 21 
 42 
 60 
 35 
 
 -, 25 0. St. 413 
 
 Kincaid v. Kincaid, 8 Humph. 181 
 King V. Faber, 51 Pa. 387 
 
 V. Norman, 4 C. B. 884 
 V. Parrott, 2 M. & S. 379 
 V. But. Ins. Co., 45 Ind. 43 
 
 Knapp et al. v. Haskall, 4 Car. & P. 
 
 590 82 
 
 Knight V. Clements, 8 A. & B. 
 
 2i5 144 
 
 Knickerbocker Ice Co. r. Gould, 8 
 
 111. 388 33 
 
 Long (' 
 Lacon 
 
 Lailc V 
 
 143 
 Lake c 
 
 State, 12 Ga. 203 
 '. Higgins, 3 Stark, 167, 
 
 75, 102, 103, 109, 142, 
 Old Col. E. E. Co. 14 Gray 
 
 Lamb r. 
 
 Lamb 
 
 Tyson, 6 N. Y. 461 
 Millikin, 62 Me. 240 
 Cam. & Amb. E. E. Co. 
 46 N. Y. 271 8, 
 
 First Prcsb. So. 20 Iowa. 
 Lansing v. Eussell, 2 Comst. 563 
 Lano r. Clements, 30 Cal. 132 
 Laramore v. Wells, 29 Oh. St. 13 
 Larne c. Gaskins, 5 Cal. 164 
 Larcoe v. Clements, 36 Cal. 132 
 Lam V. Applegate, 1 Stark. 97 
 Laughlin v. McDonald, 1 J\lo. 648 
 Lan c. Cross, 1 Black. 533 
 Langlie's Lessee v. Jones. 26 Md. 
 
 472 
 Lawrence c. Hunt, 10 Wend. 80 
 Lamson r. Hicks, 38 Ala. 279 
 Lea V. Polk Co. Cap. Co. 2] How. 
 
 493 
 Leach v. Medgly, 1 Lev. 283 
 Ledwick r. McKim, 53 N. Y. ,308 
 Leete v. Gresh Life Ins. Co. 15 Jur, 
 
 1162 
 Leeland v. Bennett, 5 Hill. 288 
 Lees V. Clark, 20 Cal. 3 
 
 v. Felt, 11 Ind. 114 
 Lefebre v. Utter, 22 Wis. 189 
 Legg V. Drake, 1 Oh. St. 286 
 Legge ''. Tucker, 2 Jur. (N. S.) 
 
 1235 
 Leport V. Todd, 32 J. L. 124 
 Leroy v. Park Fire Ins. Co. 39 
 
 N. Y. 57 
 Lester v. McDowell, 18 Pa. 91 
 
 161, 
 Lett V. Morris, 4 Sims, 607 
 Lewis V. Walters, 4 B. & Aid. 
 605 
 V. Smith, 107 Mass. 
 V. E. E. 5 H. & N. 
 V. Davidson, 4 M. & W. 
 V. Wells, 7 C. &P. 221 
 
 87, 114, 123, 125, 
 
 199 
 
 168 
 
 42 
 67 
 63 
 
 134 
 
 34 
 
 48 
 
 111 
 
 11^8 
 
 116 
 
 140 
 
 12 L 
 
 9 
 
 86 
 
 159 
 
 99 
 
 122 
 
 56 
 
 2 
 68 
 
 48 
 83 
 34 
 
 93 
 
 182 
 
 146 
 65 
 
 43 
 
 102 
 70' 
 
 121 
 334 
 
 576 
 654 
 
 147 
 
^M 
 
 TABLE 01* CASiS Clliifi. 
 
 Lex. &c., Ins. Co. 11. Paver, 1() Ohio, 
 
 .324 83. 98, 12G, 188 
 
 Life Ins. Co. v. Brinlcer, 77 N.Y. 435 
 Lillie •('. Price. 5 Ad. & CI. 645 
 
 liincoln v. Wi-ight, 23 Pa. 76 
 
 Lindsley v. The El. Pet. Co. 3 
 
 Lans. 176 86, 90, 167 
 
 Lindsay v. Lindsay, 11 Vt. 621 32, 43 
 List V. Cortepeter, 26 Ind. 27 87 
 
 Littlefleld v. BrooliS, 50 Me. 475 65 
 V. Storey, 3 Johns. 426 195 
 Little V. Marsh, 2 Ired. Eq. 18 62 
 
 V. Herndon. 10 Wali."31 144 
 Livingston v. Hummer. 7 Bosw. 
 
 675 5, 130 
 
 Lord V. Brookfield, 8 Vr. 552 3 
 
 Lockwood V. Bull, 1 Cow. 322 146 
 
 Lombard v. Ghiever, 8 111. 469 37 
 
 Lodemier v, Aspinwall, 43 III. 401 50 
 Lockard v. Lockard, 16 Ala. 423 94 
 Logging V. Buck, 33 Tex. 113 86, 94 
 Loomis V. Green, 7 Me. 389 48, 58 
 
 Lowery v. Vernon, 3 Watts. 317 
 
 92, 94 
 Loeber v. Delahaye, 7 Iowa, 478 
 
 100, 101 
 Luce V. Jones, 10 Vr. 709 110 
 
 Lucas V. Parsons, 27 Geo. 593 62 
 
 Lockhart v. Ogden, 30 Cal. 547 21 
 
 Lunflone v. Eamsey, 75 111. 246 
 
 48, ] 52 
 
 Lynch v. State, 9 Ind. 541 182 
 
 V. Welsh, 3 Pa. 294 42 
 
 I). People, 16 Mich. 472 78 
 
 V, Livingstone, 8 Barb. 463 59 
 
 Lynd v. Pickett, 7 Ashm. 184 3 
 
 Lyon V. Mottuse, 19 Ala. 463 27 
 
 Lyall V. Higgins, 42 B. 528 143 
 
 Lyre v. Morris, 5 Harr. (Del.) 3 187 
 
 liazier v. Com. 10 Gratt. 708 170 
 
 Layall v. Higgins, 4 Q. B. 528 143 
 
 M. 
 
 Magovering v. Staples, 7 Lans. 
 
 145 
 Maggurt V. Hamsbarger, 8 Leigh. 
 
 537 4, 148 
 
 Mahurin v. Harding, 28 N. H. 128 146 
 Mahaffcy v. Petty, 1 Ga. 261 
 Malone v. Dow, 15 How. Pr. 261 
 Mann v. Newtown, 3 Johns. 542 
 Mandell v. Peet, 18 Ark. 236 
 Mangold v. Thorp, 4 Vr. 134 
 Man V. Eckford, 15 Wend. 502 
 Maus V. Montgomery, 11 Serg. & R. 
 
 325 85 
 
 Manufact Nat. Bnk. r. Eussell, 13 
 
 N.-Y. Sup. Ct. 375 128 
 
 Marth V. Brooks, 11 Ired. 409 68 
 
 39 
 
 141 
 130 
 
 155 
 140 
 
 57 
 
 84 
 
 Marriner (•. Pettebone, 14 Wis. 19,^ 
 Marshall, et als. v. Davies, 78 N. Y, 
 
 419 
 Marsh v. Pier, 4 Eawle. 273 27, 
 
 Markman v. Beyd, 22 Gratt. 544 
 Marshden v. Standfield, 7 B. & Cress. 
 
 815 
 Marzzi v. 
 
 415 
 Martin v. 
 
 Williams, 1 Barn. & Ad. 
 
 41 
 
 82 
 27 
 61 
 
 37 
 
 142 
 
 14 
 
 172 
 
 O'Hara, Cowp. 825 
 r. Stutc, 3.S (Ja. 293 
 r. Clark, 1 Hempst. 259, 
 14, 151, 149 
 Marsh r. Falker, 40 N. Y. 562 58 
 
 V. City of Brooklyn, 59 N. Y. 
 
 280 60 
 
 (. Jones, 21 Vt. 378 63 
 
 r. Peire, 4 Rawl. 273 24 
 
 r. Whitmore, 21 Wall. 178 59 
 r. Ellsworth, et als. 50 X. Y. 
 
 312 120,122 
 
 D. Loader, 14 C. B. N. S. 
 
 535 65 
 
 Mason v. Seitz, 36 Ind. 516 97 
 
 V. Croom, 24 Ga. 211 18, 87 
 
 Mathews v. Sims, 2 Mills. (S. C.) 
 
 Const. 103 147 
 
 V. State, 24 Ark. 484 78 
 
 Mayo V. Sample, 18 Iowa. 307 122 
 
 McAlister v. Kuhn, 6 Otto. 87, 
 
 1, 5, 128 
 V. McMurry, 58 Pa. 1 26, 6, 33 
 McKey v. Washington Co., 3 Wall. 
 
 Jr. 381 
 
 McClintock v. , 32 Mo. 411 
 
 McCuen v. State, 19 Ark. 630 
 McOlellan v. Crafton. 6 Me. 308 
 
 160 
 08 
 
 171 
 21 
 27 
 
 173 
 
 1. 99 
 
 35 
 
 62 
 
 McCarty v. Donnell, 7 Eobt. 431 
 McCarcle v. State, 14 Ind. 39 
 McClure v. Erwin, 3 Cow. 327 
 McCircle v. Simpson, 42 Ind. 453 
 Mortimer v. Craddock, 7 Jur. 45 
 Mor. &c. E. E. Co. v. Newark 10 
 
 N. J. Eq. 352 149 
 
 Moriar v. B. E. L. E. 5 Q. B. 314 
 
 Morton v. Warring's Heirs, 18 B. 
 
 Mon. 3 
 
 Morrow v. Huntoon, 25 Vt. 9 140 
 
 Morrison v. McKinnon, 12 Pla. 
 
 552 85 
 
 Moreland v. Mitchell Co. 40 Iowa, 
 
 394 63 
 
 Morris v. Edwards, 0. 189 64 
 
 V. Bowman, 12 Gray. 467 144 
 V. Morris, 28 Mo. 114 3 
 
 V. Davis, 3 C. & P. 215 52 
 
 '('.Wadsworth, 17 Wend. 118 
 
 81,84 
 V. Lotan, 1 M. & E. 233 
 
 111.112, 113,138,142 
 
TABLE OF CASES CITED. 
 
 253 
 
 Monibtf ('. StatP, 1 Tex. App. 494 
 
 1S7, 188 
 
 Moi'sau i: Moi-sc, 13 Gray. IfiO 21 
 Pebrer, 3 Bing'. 
 
 (X. 0.)4.-)7'" 143 
 
 Moses c. Levy, 4 A. B. 213 25 
 c. Gatewood. .5 Rich. (N. V.) 
 
 234 120 
 
 i . McFarlan, 2 Burr. 1008 141 
 ^[ott r. Burnett, 2 E. D. Smith, 
 
 50 129 
 
 Moulton r. Smith, 32 Mq. 40ri 1.57 
 
 Moye t. Herndon, 30 Miss. 110 42 
 "Multman r. AVilliamson, 69 111. 
 
 423 31 
 
 Mullen r. Pryor, 12 Mo. 307 65 
 
 Mulford l: Tunis, 35 N. J.L. 256 159 
 
 r. Warden, 6 AVall. 423 34 
 
 Mumisomet v. Greenbv, 111 Mass. 
 
 545 ■ 154 
 
 Munroe v. Stickney, 4S Me. 4(12 99 
 Mundine c. Gold, 5 Port. (Ala.) 
 
 215 32. 191 
 
 Murphy c. Stults, 1 N. J. Eq. 
 
 (Sax.) 560 127 
 i-. Deane, 101 KIO Mass. 
 
 466 149 
 
 r. Byrd, 1 Hemst. 221 129 
 
 r. Fondulac, 23 Wis. 365 1 50 
 
 Murry v. Slurry, (J Greg. 17 72 
 
 ^[yers V. Amedon, 45 N. Y. 16s .58 
 
 Merwin r. Ward, 15 Conn. 377 62 
 
 Merrill ... Melchoir, 30 Miss. 516 59 
 
 Meyer v. Barker, 6 Binu. 228 62 
 
 / . Lathrop, 73 N. Y. 322 67 
 
 Metzker v. People, 14 111. 101 78 
 
 Mich. R. Pi. < 'o. '■. Bivans, 13 Ind. 
 
 263 34 
 
 :\richel r. Cniswellcr, 13 G. i!. 337 96 
 Middleton r. Ames, 7 Yt. I(i8 129, IGH 
 Middleton r. Com. 1 Litt. (Ky.) 
 
 347 85 
 
 Miles r. Douglass, 34 Conn. 393 4L 
 
 /■. Coldwell, 2 Wall. 36 97 
 
 r. Looniis, 75 X. Y. 3S9 45 
 
 Millard v. Thorn, 5(i N". Y. 405, 
 
 88. 91, 128, J 65, 167 
 
 . Moore, 39 [11. 5S4 21 
 ef al. r. A\'ack, et als. Sax. 
 
 A' Sax. 209 1 SH 
 ,'. Adams, 7 I.ans. 
 
 J 3 152 
 ,■ Harden, 64 Mo. 
 
 545 159 
 /■. Decker, 40 Barb. 
 
 234 151 
 
 Milliken r. Marlin, 06 111. 13 144 
 Mills r Barber, 1 Mees. & W. 425, 
 
 26,67,139,140 
 
 Milk r 
 Miller, 
 
 Mills V. Blackall, 11 Ad. & El. N. S. 
 
 358 2 
 
 V. Corastook, 5 Johns. 214 67 
 
 V. Johnson, 23 Tex. 308 21 
 
 V. Mahon, 9 Iowa. 448 42 
 r. Oddy, 6 0. & P. 728, 
 
 124, 131, 144 
 
 :\lilen c. Henry, 40 Pa. 352 33 
 Mirriam v. Cunningham, 11 Gush. 
 
 40 92 
 Mitchell V X'ewell, 15 M. & W. 
 
 389 46 
 
 Modawell r. Holmes, 40 Ala. 391 64 
 
 Mody r. Sewell, 14 :\Ie. 295 81 
 
 :\loflet r. Yarden, 5 Gr. G. ('. 658 69 
 Montgomery v. 
 
 40 
 
 126 
 
 65 
 
 53 
 
 100 
 
 3 
 
 41 
 
 62 
 
 122 
 
 S5 
 34 
 76 
 100 
 70 
 
 Gilmer, 33 Ala. 
 117 
 r. Swindler, Oh. St. 
 7 Rept. 301 
 Plank Road Co. 
 r. Webb. 27 Ala. 
 618 
 :Monke v. Butler, 1 Rol R. 83 
 Moas r. Ashbrook, 12 Ark. 369 
 ]Moore v. Boulcott, 1 Bing. X. G. 
 404 
 (. Boss, 11 N. li. 547 
 McDonough c. O'Neil, 113- Mass. 
 
 92 
 M'Mullen v. Borch, 1 Binncy, 
 
 178 
 McFarlin v. Triton Ins. Co. 4 D e o. 
 
 392 
 McGuffie c. State, 17 Ga. 497 
 McGrcgory r. Prescott, 5 Gush. 67 
 McGregor r. Shaw, 11 Gal. 47 
 McGowen v. Smith, 36 L. J. Ch. 8 
 McGinnity v, Languerennere, 16 111. 
 
 101 142 
 
 McGlorn /'. Prosser, 21 Wis. 273 7K 
 McGuire c. State, 35 :\Iiss, 366 171 
 McKinnon r. Bliss, 21 N. Y. 206 64 
 McKenzie r. Milligan. 1 Bay.(S.C.) 
 
 248 103, 152 
 
 Mcljendon v. Frost, 57 Ga. 448 184 
 :\leOullouiih r. State, 19 Ind. 57(; 34 
 McDees ■;;. Felt, 11 Ind. 218 142, 162 
 .AIcLansland r. Giesap, 3 Iowa, 161 42 
 McLean r. Clark, 4 7 Ga. 24 35 
 
 Milliard ct. als. r. Thorn, 56 N. Y. 
 
 405 H6 
 
 Mills V. Kennedy, 1 Bailey, 17 78 
 
 Mc^Iahon 'i'. Harrison, 2 Sidd. 
 
 443 
 
 V. Davidson. 12 Minn. 
 
 357 
 
 McMillian v. Cronin, 75 X. Y. 
 
 477 
 McMillian v. Staples, 37 Iowa, 
 5.32 
 
 66 
 
 49 
 
 45 
 
 149 
 
254 
 
 TABLE OP CASES CITED. 
 
 McNitt V. Turner, 16 Wall. 352 56 
 
 McPherson v. State, 22 Ga. 478 34 
 V. Daniels, 10 B. & 0. 
 
 272 120 
 V. Melhinch, 2 Wend. 
 
 671 27 
 
 McTavish v. Carroll, 13 Md. 429 37 
 Mears v. Graham, 8 Blackf, 144 59, 65 
 M. & B. R. R. Co. V. Bonnell, 5 Vr. 
 
 474 154 
 
 Meader v. State, 11 Mo. 363 171 
 
 Mead v. Bnnn, 32 N. Y. 275 155 
 
 Meagoe v. Simmons, 3 C. ct P. 75 204 
 Jleaknegs v. Ochiltree. 5 Port. 
 
 Ala. 395 149 
 Mercer v. Whall, 5 Ad. &. El. 
 
 (N. S.) 447 21, 109, 
 
 118, 167 
 
 r. Doe, 6 Ind. 80 56 
 
 Merrill c. Douglass, 14 Kans. 293 60 
 
 I-. Emery, 10 Pick. 507 67 
 
 ^'. 
 
 Nadenbonsch -v. Sharer, 2 W. Va. 
 
 285 70 
 
 N;ush !'. Brown, et al. 2 Car. & K. 
 
 219 198 
 
 Nash y. Breeze, 11 JNIccs. & W. 
 
 352 143 
 
 Nauper c. Young, 12 Iowa, 450 41 
 
 New Bedford r. Hingham. 117 Mass. 
 
 445 " 21 
 
 Aflson V. Peop, 23 N. Y. 296 53 
 
 0. Hardy, 7 Ind. 364 42 
 
 Newell, et als. v. Nichols, et al. 
 
 75 N. Y. 79, 69 72 
 Newhall v. Holt, 6 M. & W. 662 70 
 V. Barnard, Yelv. 225 2 
 
 New Haven Co. v. Brown, 46 Me. 
 
 418 21 
 
 Newton ik Jackson, 23 Ala. 335 42 
 Newen v. Gill, 8 C. & P. 367 2 
 
 Nickerson, et als. v. Ruger, et als. 
 76 N. Y. 280, 
 
 16, 17,165 
 Nicholson v. State, 28 Md. 140 172 
 Nichols V. Munsell, 115 Mass. 167 98 
 Nixon V. Palmer, 10 Barb. 175 66 
 
 Noe V. Gregory, 7 Daly. 273 11, 75 
 Noiee v. Brown, 38 N. J. L. 228 145 
 Nonemaker v. State, 34 Ala. 211 169 
 North Brunswick v. Boorean, 5 Halst. 
 
 257 129 
 
 Norris v. Winsor, 12 Me. 293 149 
 
 Norton v. Sohofleld, 9 M & W. 665 101 
 'Norwill V. Thompson, 2 Hill. (S, C.) 
 
 470 150 
 
 New York Dry Dock Co. v. Mcintosh, 
 5 Hill. 290,93,100,119,132, 
 
 142, 165 
 
 N. Y. Firemen's Ins. Co. v. Sturges. 
 2 Cow. 664 55 
 
 0. 
 
 O'Brien v. Kilburn, 22 Tex. 616 • 37 
 
 V. Peop. 48 Barb. 274 64 
 
 V. St. Paul. 18 Minn. 176 38 
 V. Saxton, 2 Barn. & Cress 
 
 908 1, 2 
 
 0'('onnell v. Reg. 11 C. & F. 155 197 
 
 O'Connor v. Guthrie, 11 Dana. 80 40 
 t'. Union Line, &c., Co. 
 
 31 111. 230 160 
 
 Ott V. Schrappel, 3 Barb. 59 4 
 O'Gara v. Cisenlober, 38 N. Y. 
 
 296 6 
 
 Ogle V. Barnes, 8 T. R. 190 148 
 
 Ogletree v. State, 28 Ala. 693 49 
 
 O'Keely c Territory, 1 Oreg. 51 207 
 
 Oliver v. Depew, 14 Iowa. 490 41 
 V. Phelps, Spen. (N. J.) 
 
 180 151 
 O'Neil V. N. Y. Mining Co. 3 Nev. 
 
 141 65 
 Opdyke v. Weed, 18 Abb. Pr. 
 
 223 120 
 Osborn v. Thompson, 9 0. & P. 
 
 337 15, 20 
 
 ()verbury v. Muggrige. 1 F. & F. 
 
 137 92, 142 
 
 Owen i: (VReilley, 20 Mo. 603 142 
 
 P. 
 
 38 
 145 
 
 Packard v. Snell, 35 Iowa, 80 
 Paddock v. Robinson, 63 111. 99 
 Paige V. Willet, 38 N. Y. 31 
 
 5, 70, 87, 91, 92 
 
 Page V. Stephens, 23 Mich. 357 62 
 
 Palmer v. Wright, 58 Ind. 486 64 
 
 Pallet ('. Sargent, 36 N. H. 496 130 
 
 Pontifix V. Jolly, 9 C. & P. 202 92 
 
 Poppin V. Allen, 34 Mo. 260 159 
 
 Parsons v. Surney, 15 Tex. 272 207 
 
 V. Brown, 15 Barb. 590 41 
 
 V. Ely, 2 Conn. 377 140 
 
 Parker v. Gorton, 3 R. I. 27 94 
 
 Parsley v. Freeman, 3 T. R. 51 57 
 
 Post V. Munro, 1 South. 61 110 
 Passmore v. Bonsfield, 1 Stark. 
 
 296 138, 142 
 
 Patterson "- State, 47 Ga, 524 172 
 
TABLE OF CASES CITED. 
 
 255 
 
 rattorsoii r. Jones, 8 B. & C. 
 
 578 120 
 McCiiuslaiul, 3 Bland. 
 
 (Md.) 69 63 
 
 Patchor c. Spraguc, 2 Johns. 462 2 
 
 Patrick v. Grant, U ]\to. 233 39 
 
 Patten c. Hamilton, 12 Ind. 256 142 
 
 Patty V. Edliue, 1 Or. C. C. 60 S."! 
 
 Paul c. Slason, 22 Vt. 231 99 
 
 Paxton ('. Boycc, 1 Tox. 31 T 58 
 Paymaster General c. Eeader, 4 AVasli. 
 
 0. C. E. 678 :', 
 
 Payne v. Treadwcll, 16 Call. 220 64 
 
 V. TTatha-svay, 3 Vt. 212 155 
 
 r. Hook, 7 ^Va.\]. 425 2 
 
 Peacock ;•. Hanev, 37 N. J. L. 
 
 179 " 1 62 
 
 Pearson c. Cobs, 1 M. A- R. 206 150 
 
 (■. French, 9 Vt. 349 140 
 
 /■. i;o!4ers, 9 Ad. A- El. 
 
 303 1 '.) 
 
 Pearl r. ^Vel^lan, 3 (jilnian. 311 4 
 
 Pea-lv r. Robins, 3 ^[ete. 164 68 
 
 Pcck"r. Houghtlini!', 35 >,Iich. 127 159 
 
 ,-. ITuntor, 7'lnd. 295 21 
 
 c. >'^nider, 13 Mich, 21 34 
 
 c. Chapman, 16 La. Arn. 
 
 366 21 
 
 r. AVilson, 22 111. 205 100 
 
 Peckham )■. Huddock, 36 111. 38 59 
 
 Penn R. R. Co. v. Zeb. 33 Pa. 318 40 
 
 Pelham. r. Grigcs, 4 Ark. 141 68 
 
 Penny I'. Toy, 8^15. &C. 11 76 
 Pemberton c. Smith, 3 Head. (Tenn.) 
 
 48 153 
 
 Pennington r. 'J'ell, 11 Ark. 2i2 33 
 Penhryn Slate Co. r. :\Iver, 8 Daly. 
 
 62 " 88, 118, 165 
 
 People V. Melgate. 5 Cal. 127, 
 
 49, 71, 172 
 
 ) . Fair, 43 < 'al. 137 190 
 
 V. White, 24 ^Vem]. 525 53 
 
 V. Thayers, 1 Park. (Jr. 595 34 
 r. Rudolph, 2 Park. Cr. 
 
 164 46 
 
 /•. Baker, 3 Hill. 159 9,s 
 /. Albrtson, 8 Iloiv. Pr. 
 
 -.a;:', 53 
 
 r. Erkford, 7 Cow. 535 169 
 
 /. l»ixon, 4 I'ark. Cr. 651 172 
 
 c. .McDonald, 9 Mich. 150 46 
 r. Utica Ins, Co. 15 Johns. 
 
 15, 358, 1. Ark. 513 55 
 
 /. Fuller, 2 Park. C. R. 16 64 
 V. Cunningham, 1 Dcnio, 
 
 524 <i3 
 
 ?;. McLeod, 1 Hill. :i77 (55 
 
 r. Roc, 1 Hill. 470 85 
 
 r. Galebest, 39 Cal. 663 ■- 172 
 
 V. Bennett, 49 N. Y. 107 172 
 
 People v. I-Ialbut, 4 Den, 133 174 
 
 V. Marion, 29 Mich. 31 62 
 
 V. Rathburn, 21 Wend. 
 
 509 62 
 
 V. Ah. Ki. 20 Cal. 177 31 
 
 c. Chambers, 18 Nb. 382 31 
 y. Storn, 9 Wend. ]82 50 
 
 i: Shotwell, 27 Cal. 394 170 
 r. Lcvison, 16, 98, 31 
 
 c. Snider, 41 N. Y. 397 60 
 
 r. Ilaynes, 11 ^Vend. 557 50 
 V. Gates, 13 Wend. 311 50 
 
 r. Krummer, 4 Park. (Ir. 
 217 70 
 
 Perkins Adm's. v. (iav. Miss. Fob'y. 
 
 4, 1878. 5 Rept'r. 399 183 
 
 Perrin v. Jlon. R. R, (.^o, 11 C, B. 
 
 863 93 
 
 Peterson r. Elliott, 9 :Sld. 52 41 
 
 Pettengill v. Porter, 8 Allen. 1 42 
 
 Phelps V. Call, 7 Irod. 202 68 
 
 V. Hartwell, 1 Mass. 71 66 
 
 Philps /'. Town of Gats, U. S. 0. C. 
 
 N. I ). N. Y. 8 Rept'r. 677 16 
 
 Phillips V. "Wooster, 36 X. Y. 412 149 
 V. Whimburn, 4 C. & P. 
 
 373 55 
 
 Phfcnix, &c.. Co. r. Fletcher, 23 Cal. 
 
 418 34 
 
 Phil. & C. R. R. Co. V. Harper, 
 
 29 Md. 330 41 
 
 Phil. & Trent. R. R. Co. v. Shipson, 
 
 14 Pet. Kid 38 
 
 Philpot c. Taylor, 75 111. 309 183 
 
 Pierce v. Rirhardson, 37 N. H. 
 
 306 68 
 
 Picharte v. State, Fell. 67, 1879, 
 
 8 Rept'r. 63 61 
 
 Pirtle V. State, 9 Humph. 664 61 
 
 Pitcher v. Patrick, 1 Stew. & Port. 
 
 (Ahi.) 478 144 
 
 Pittsburg ('. "Walters, 69 Pa. 395 61 
 Pittsburg R. R. r. Rose, 74 Pa. 
 
 362 21 
 
 r. Ramsey, 22 Wall. 
 :!22 56 
 
 Plowman :•. Foster, 6 Cald. Tenn. 
 52 148, 150 
 
 Piatt r. Stewart, 10 Mich. 260 160 
 
 et. als. V. Piatt. 58 N. Y. 
 648 63 
 
 Plvmoiiili r. Painter, 17 Conn. 
 
 ,585 53 
 Port Dry D. k Ins. Co. r. Trustees 
 
 of J'o'rt, 12 B. Mon. 77 14 
 Post Master Gen'l. (.'. Parian, 
 
 4 jMason, 333 6 
 
 PoUgreser v. Done, 16 Munn, 204 3 
 
 Powers r, M, 0, Perron, 2 Serg. & R. ~^ 
 
 44 40 
 
 18 
 
256 
 
 TABLE OF CASES CITED. 
 
 Powers 
 Power i 
 Powell -. 
 Potter V. 
 
 146 
 Plcliard 
 
 •. Russell, 13 Pick. 76 
 . Barkam, 7 C. & P. 358 
 Millbank, 3 Wils. 355 
 . Chtulscy, 16 Abb. Pr. 
 
 43, 
 
 r. Oaiiipljell, 5 liid. 4!I4 
 r. Bannerinaii, H Jones, 
 (N. 0.) f)3 
 Pratt ('. I/angdon, 97 Mass. 97 
 V. Lambson, 6 Allen, 457 
 Price V. Sinclair, 13 Miss. 254 
 V. State, 19 Ohio, 423 
 V. Alexander, 2 Greene, 427 
 Scamard, 0. & Marsh, 23 
 &c. r. Stoors, 6 Mass. 
 
 Preside, 
 
 425 
 Provost 
 Proskey 
 Preston 
 Penning 
 
 (Del.) 
 Pi'obate 
 Prell V. 
 Printy v 
 Putnam 
 
 146 
 Pussy V. 
 PuUen V. 
 Puller V. 
 
 ". Gratz, 6 Wheat. 48 L 
 V. West, 16 Miss. 711 
 ". Leighton, 6 Md. 
 ton v. Ohandler, 5 Harr. 
 394 
 
 c. Stone, 44 N. H. 593 
 McDonald, 7 Kans. 426 
 . Cheny. 11 Iowa, 469 
 V. DePorest, 8 How. Pr. 
 
 Wright, 31 Pa. 387 
 . White, V. 3 ('. & P. 434 
 Clark, 3 E. D. Sin. 302 
 
 Q. 
 
 Quinn v. Com. 20 Gratt. 138 
 Quinebang B'k. v. Brewster, 
 599 
 
 207 
 54 
 
 65 
 115 
 
 1)2 
 21 
 21 
 129 
 173 
 42 
 92 
 
 161 
 
 59 
 
 140 
 
 41 
 
 160 
 167 
 152 
 150 
 
 129 
 18 
 
 193 
 38 
 
 57 
 61 
 
 Raggett V. Musgrave, 2 C. & P. 
 
 556 46 
 
 Ragsdale c. Gohlke, 36 'I'cx. 286, 
 
 96 116 
 
 Railroad Co. v. Barnes, 40 Mich. 66 
 Raker's Bx'rs v. Gainr's Ex'rs. 
 
 17 Wend. 559 10 
 
 Rambsbottom ('. Buekhurst, 
 
 2 M. & Sol. 567 56 
 
 Ram V. Hughes, 7 T. R. 351 141 
 
 Randebaugh v. Shelby, 6 Oh. St. 
 
 307 ' 154 
 
 Randolf B'nk c. Armstronj^-, 11 Iowa. 
 
 515 ' 154 
 
 Randall ■;;. Brigham, 7 Wall. 523 122 
 Ransford v. Copeland, 6 Ado). & El. 
 
 492 
 Ransom v. Christian, 56 Ga. :i51 120 
 Rapalye v. Price, 4 Hill. 119 
 
 Raper v. Stone, Cooke. (Tenn.) 
 
 499 75 
 
 Pass V. State, 9 Mo. 696 171 
 
 Ray V. Clemens, 6 Leigh, 600 95 
 
 ('. Rowley, 4 Thoiap. & 0. 
 
 431, 1 Hun. 614 56 
 
 Raymond v. Wheeler, 9 Cow. 295, 
 
 47, 70, 91 
 Rawk's u. State, 16 Miss. 599 169 
 
 Rawlins v. Danvirs, 5 Esp. 38 44 
 
 V. Desborough, 2 M. & Rob. 
 70 48, 81, 126, 127 
 
 Read v. State, 2 Ind. 438 183 
 
 Ready v. Scott, 23 Wall. 352 56 
 
 Roberts u. State, 14 Ga. 8 173 
 
 Rector v. Smith, 11 Iowa. 302 122 
 
 Redman v. Ilcndrickson, 1 Sandf. 
 
 32 161,162 
 
 Reed v. Wilson, 12 Vr. 29 130 
 
 Rees V. Smith, 2 Stark. N. C. P. 30, 
 
 134 136 
 
 Reeve v. Underhill, 6 V. & P. 
 773 1 If. & R. 440, 141, 122, 124, 
 
 125, 
 Reed v. Nixon, 48 111. .323 
 
 V. Edwards, 17 C. B. N. S. 
 
 245 
 V. Dickey, 1 Watts. 152 
 c. Jackson, 1 East. 355 
 Reeve v. Ins. Co. 39 Wise. 520 
 Reeves v. Dougherty, 7 Zerg.' 222 
 Reese v. Beck, 9 Ind. 238 
 
 Reg I'. Christie, 1 F. & P. 75 
 
 V. Yscuado, 6 Cox. C. C. 386 
 V. Briggs, 1 P. & P. 106 
 V. Bernard, 1 P. &. P. 240 
 V. Faderman, 3 C. & K. 359 
 V. Blackman, 3 C. & K. 330 
 V. Barrow, 10 Cox. C. C. 407 
 V. Bockwith, 7 Cox. C. C. 505 
 V. Taylor, 1 P. & P. 535 
 V. Berens. 4 F. & F. 842 
 V. Gardiner, 1 C. & K. 628 
 V. Boucher, 8 C. & P. 141 
 V. Gardner, 9 Cox. C. C. 332 
 V. Dowse, 4 F. & F. 492 
 L'. Tackley, 10 Cox. C. C. 406 
 r. Stevens, 11 Cox. C. C. 669 
 >: Schlector, 10 Cox. C. C. 
 
 409 
 (. Burton, 2 F. & F. 788 
 r. Stowell, 1 D. N. S. 320 
 V. Smith, 2 M. & Rob. 109 
 v. Malins, 8 ('. & P. 242 
 V. Straham, &c., 7 Cox. C. (!. 
 
 85 
 V. Butcher, 2 M. & Rob. 228 
 c. Taylor, 1 F. & F. 535 
 V. Buther, 2 M. & Rob. 228 
 V. Jordon, C, & P. 118 
 
 146 
 
 57 
 
 63 
 62 
 56 
 21 
 57 
 155 
 196 
 174 
 197 
 171 
 171 
 196 
 197 
 196 
 196 
 173 
 197 
 174 
 173 
 190 
 197 
 174 
 
 171 
 196 
 170 
 170 
 174 
 
 169 
 174 
 174 
 199 
 197 
 
'fABtfe ot* tiAsteg OlTEfl. 
 
 267 
 
 lieg t). Bernard, 1 P. & P. 240 
 '•. White, 3 Camp. 98 
 t: Hursfield, 8 C. & P. 269 
 V. Skeen, 8 Cox. 0. C. 143 
 f. Bm-rovvs, 2 M. A- Rob. 124 
 r. Guruey, 11 Cox. C. 0. 114 
 V. Brice, 2 B. & A. 60G 
 V. Beard, 8 C. A- P. 142 
 r. Parkins, 1 V. & P. 548 
 V. Manzauo, 8 Co.\. C. (,'.321 
 Rennselaer, &c. Co. c. AVetsel, 6 Pr 
 
 68 
 Remsen v. People. 43 X. Y. 6 
 Reicli r. Reid. 11 Tex. 585 
 Res V. Gucose. v. 2 IhiU. 123 
 Reub r. McAllister, 8 AVend. 109 
 Revett V. Braham, 4 T. R. 497 
 Rex r. Lord Abbington, 1 Esp. 22G 
 V. Topliam, 12 Bast. 546 
 u. Crcevy, 1 M. & S. 273 
 V. Turner, 5 Mau. & Sel. 206 
 V. Skinner, Loft. 55 
 V. Southy, 4 P. & P. 864 
 V. St. Pancras, 3 A. & E. 535 
 V. Hull Dock Co. 5 B. & C. 516 
 V. Hilditch, et al. 5 Car. & P. 
 229 
 
 ]74 
 174 
 173 
 10 !1 
 174 
 173 
 173 
 174 
 174 
 174 
 
 128 
 190 
 
 32 
 149 
 119 
 
 27 
 122 
 176 
 122 
 
 75 
 122 
 174 
 155 
 177 
 
 82 
 
 Beezly, 4 Car. & P. 218 82 
 
 Sarvis, 2 Burr. 148 14 
 
 Hawkens, 10 East. 211 54 
 
 Earl of Abbington, 1 
 Peak's Ca. 236 196 
 
 Justices of Suffolk, 6 M. & S. 
 57 175 
 
 153 
 
 49 
 49 
 195 
 171 
 171 
 178 
 172 
 200 
 195 
 171 
 178 
 
 171 
 170 
 ;2()6 
 109 
 173 
 171 
 169 
 169 
 4, 75 
 173 
 75 
 
 Yates, 1 C. & P. 323 
 Lord Halifax, 2 Ev. Pot. 
 145 
 
 Combs, Comb 57 57 Jac. 2 
 Bell, M. & M. 439 
 Gibson, 8 East. 107 
 Israil, 2 Cox. C. C. 263 
 Knill, 12 East. 50 
 Gascoine, 7 0. & P. 772 
 Carlisle, 6 C. & P. 636 
 Ratcliffe, 1 W. Bla. 3 
 Steel, 1 Leach. C. C. 451 
 Wolford, Cald. 236 
 Mercier, 1 Leach. C. C. 
 
 183 
 Webb. 3 Bur. 1468 
 Adey, 1 M. & R. 94 
 Abram, 1 M. & Bob. 7 
 Parry, 7 C. & P. 836 
 Roberts, Car. C. L. 57 
 Hipper, B. & M. 210 
 Tremain, 5 D. & R. 413 
 Pemberton, 2 Burr. 10 1 
 Davis, 7 C. & P. 362 
 Jarvis, 1 Burr. 148 1 East. 
 
 83 
 
 Rex ■('. Stimpson, 2 Carr. &. P. 
 
 415 82 
 
 V. Brignold, 4 D. & B. 70 
 
 199, 202 
 V. Marsden, et als. M. & M. 
 
 439 195, 197 
 
 V. Home, 20 How st. Tr. 
 
 664 188, 195, 197, 199 
 
 V. Newbury, 4 T. R. 475 
 
 175, 176 
 V. Steward, et als. 7 C. & P. 
 
 673 188, 191 
 
 Reynolds v. McCormick, 62 111. 
 412 
 V. N. Y. C. R. R. Co. 
 58 N. Y. 238 
 Richard v. Nixon, 20 Pa. 23 
 Rice r. State, 3 Kans. 141 
 
 (■. Com. 3 Bush. 14 
 Rich V. Rich, 16 Wend. 633 
 Ripley v. Babcotk, 13 Wis. 425 
 R'chley v. Proone, 1 Barn. & Cr. 
 
 286 26 
 
 Beiddens v. Reiddens, 29 Mo. 470 
 Rifting V. Peltoii, 12 Id. 259 
 Richardson ,-. Fell, 4 Dowl. I'r. 
 10 
 i:. George, 34 Mo. 104 
 Richards v. Kountze, 4 Neb. 200 
 
 V. Nixon, 20 Pa. 19 
 Richmond v. Aiken, 35 Vt. 324 
 Ridgway v. Ewbank, 2 M. & Rob. 
 
 218 15, 
 
 V. Lougaker, 18 Pa. 215 
 
 37, 70, 
 Rose V. State, Minor (Ala ) 28 
 
 /'. Brown, 
 Roy V. Targee, 7 Wend. 359 
 V. Townsand, 78 Pa. 329 
 Rogar V. Burns, 13 Ga. 34 
 R. B. Co. V. Muthershaugh, 71 111. 
 572 
 V. Gladman, 15 Wall. 
 
 401 
 V. Stout, 17 Wall. 657 
 
 33, 35 
 
 Roman v. Tamb, 4 Greene, 463 32 
 
 Rowe V. Bird, 48 Vt. 578 63 
 
 V. Table & Co., 10 Cal. 441 100 
 
 Rowlins V. Tucker, 3 Iowa, 213 
 
 Ryan r. State, 25 Ala. 65 
 
 Ry Co. V. Marshall, 4 Norris, 186 
 
 Rucker v. O'Neely, 4 Blackf. 179 
 
 Ruter V. Price, 1 H. Bla. 547 
 
 Runnels v. State, 28 Ark. 121 
 
 Rushin v. Shields. 11 Ga. 636 
 
 Russ V. Gould, 5 Greene, 204 
 
 -(>. Brooks, 4 E. D. Smith, 
 
 644 
 
 R. V. Gray, 11 B. & 0. 807 
 
 161 
 
 148 
 
 167 
 
 170 
 
 53 
 
 93 
 
 66 
 
 , 129 
 40 
 34 
 
 144 
 21 
 57 
 94 
 33 
 
 6 
 
 20 
 
 ,91 
 
 170 
 
 165 
 
 37 
 
 57 
 40 
 
 99 
 
 21 
 
 40 
 
 85 
 
 44 
 
 150 
 
 141 
 
 172 
 
 41 
 
 30 
 
 120 
 60 
 
258 
 
 TABLE OF CASES CITED. 
 
 Eussel V. Woodward, 10 Pick. 
 
 408 67 
 
 V. Clark's Ex'rs, 7 Or. G9 58 
 
 Rutherford v. 3 B. & B., 302 75 
 
 E. V. Triiner, 5 M. & S. 206 77 
 
 V. The Inhabitants of Twyning, 
 
 2 B. & Aid. 386 73 
 
 V. Yeats, 1 C. & P. 323 87 
 
 V. Garbett, 1 Den. 0. C. 258 206 
 V. Carlisle, 2 B. & Ad. 367 56 
 
 V. Ashburton, 8 Q. B. 876 60 
 
 V. Pitts, C. & M. 284 64 
 
 V. Arundell, Hob. 109 62 
 
 V. Parveter, 3 Cox. C. 0. 191 63 
 V. Smith, 1 Cox. C. C. 260 65 
 
 V. Owen, 4 C. & P 236 65 
 
 V. Eldershaw, 3 C. & P. 366 65 
 
 V. Kuill, 175 
 
 V. Phillips, 8 C. P. 736 65 
 
 ^.Jordan, 9 C. & P. 118 65 
 
 Eymer v. Cook, et als. M. & M. 
 
 86 189 
 
 Eobinson v. Eayley, 1 Burr. 319 1, 2 
 Bobbins v. Codman, 4 B. D. Smith, 
 
 325 91 92 
 
 Royce v. Burt, 42 Barb. 663, ' 97 
 
 Eobinson v. White, 42 Me. 209 115 
 V. Scull, 3 N. J, L. 817, 
 
 85 141 
 
 ■V. Fisher, 3 Cai. N. Y. 
 
 99 140 
 
 V. Lanson, 26 Mo. 69 129 
 
 r. Chaplin, 6 Iowa, 91 41 
 
 V. Calloway, 4 Ark. 94, 
 
 161 162 
 
 Eoberts v. Kiem. 27 Ala. 678 140 
 
 V, Gurnsey, 3 Grant. Pa. 
 
 237 57 
 
 V. Pillow, 1 Hemst. 624 60 
 
 Eoberton v. Wright, 17 Gratt. 534 73 
 Eoby V. Howard, 2 Stark. 555, 
 
 101, 102, 103, 109, 142 
 Eobbins v. Codman, 4 B. D. Sm. 325, 
 
 5, 37, 70, 87 
 Eodings Bxr v. Eoyal, Pa. Feb. 10, 
 
 1879, 8 Eept'r. 27 35 
 
 Eogers v. Spence, 12 CI. & Fin. 717 3 
 
 11. Diamond, 13 Ark. 474 18 
 
 V. Broadnx, 24 Tex. 538 42 
 
 V. Arnold, 12 Wend. 36 27 
 
 Eolmn V. Hanson, 11 Cush, 44 167 
 
 Eolfe V. Eumford, 66 Me. 264 183 
 
 Rolan V. Fisher, 30 111. 224 159 
 
 Eondell v. Fay, 32 Cal. 354 116 
 
 Eook & Wash. Turnp. Co. v. Van 
 
 Nese. 2 Cr. C. C. 449 53 
 
 Eoodv. N. Y. & B. E. R. Co. 18 Barb 
 
 80 149 
 
 Eoot V. King, 7 Cow. 618 120, 121 
 
 Rorshmider v. Kjiickerbocker Life 
 Ins. Co. N. Y. May 21, 1878, 58 
 
 Boss V. Mather, 60 N. Y. 1 38 
 
 V. Drunkard, 35 Ala. 434 57 
 
 V. Hunter. 4 T. R. 33 8, 10, 53, 75 
 V. Gould, 5 Greeul, 204 7 
 
 S. 
 
 Seaman v. Netherclift, 34 L. T. 
 
 (N. S.) 878 122 
 
 Sears v. Dennis, 105 Mass, 310 64 
 
 Seavy v. Dearborn, 19 N. H. 351 
 
 ■^ 151, 167 
 
 Seal V. Moreland, 7 Humph. 575 99 
 Seibert v. Erte. R. R. Co. 49 Barb. 
 
 483 33 
 
 Seligman v. Sharlottsville Nt. B'k. 
 
 9 Reporter, 72 55 
 Selleck v. Starr, 5 Vt. 255 66 
 Sennett v. State, 17 Tex. 308 56 
 Seneca Road Co. v. Aub. & Rock. 
 
 E. E. Co., 5 HiU. 178 132 
 
 Serrine v. Briggs, 31 Mich. 445 144 
 Settle V. Settle, 10 Humph. 505 1 40 
 Seymour v. Hubert, Pa. May 3, 1880, 
 
 10 Eept'r 182 44 
 Shackford v. Newington, 46 N. H. 
 
 415 21 
 
 Shaeffer v. Landis, 1 Serg. & R. 
 
 449 , 41 
 
 Shain v. Markam, 4 J. J. Marsh, 
 
 578 5 
 
 Shaw V. Eeople, 81 111. 151 33 
 
 V. Beck, 8 Ex. 392 135 
 
 V. Shaw, 78 Mass. 158 65 
 
 Shedman v. Holman, 33 Miss. 
 
 550 207 
 
 Shehann v. Davis, 17 Ohio st. 371 58 
 
 Sheldon v: Clark, 1 Johns. 514 76 
 
 Shelton V. Nance,. 7 B. Mon. 128 122 
 
 V. Hamilton, 23 Miss. 
 
 496 41 
 
 Shepherd et. als. v. Greaves, 14 How. 
 
 505 102, 139 
 
 V. Bank of Mis- 
 souri, 15 Mo. 
 114 73 
 
 V. Potter, 4 Hill. 
 
 203 84 
 
 Shilock V. Passman, 7 0. & P. 
 
 291 22, 144 
 
 Shields V. West. 17 Cal. 324 62 
 
 Short V. State, 7 Yerg. (Tenn.) 
 
 570 34, 51, 58 
 
 V. Galloway, 11 Ad. & B. 
 
 28 135 
 
 Shuliman v. Brantley, 50 Ala. 81 '21 
 Shuken. v. Collins, 20 111. 325 12i 
 
Table of Cases cited. 
 
 i>5§ 
 
 Sailer v. the State, I Harr. (N. J.) 
 
 377 171 
 
 ^ais r. Sais, 49 Cal. •2(;4 160 
 
 Sawyei- v. Newland, 9 Vt. 383 151, 116 
 r. MeiTill, 6 Pick. 480 114 
 
 Saxon V. Whiticar, 30 Ala. 237 66 
 
 Salt Lake City Nat. Bank v. Hend- 
 
 ricksou, 11 Tr. 52 128, 130 
 
 Salter r. Myers. 5 B. ^Mon. 280 :V2, 191 
 Sandford (•."Hunt, 1 (\ & P. 118 149 
 Sands v. Bullock, 2 A\'end. 680 27 
 
 Sampley r. AVeed, 27 Ala. 621 94 
 
 Sampson r. Henry, 13 Pick. 56 151 
 
 Sehaetzel r. Germ. Szc. Ins. ("o. 
 
 22 Wise. 412 3 
 
 Scherhoru v. Talma;), 14 N. Y. 93 56 
 Sehemorliorn c. Scliemcrhoru, 6 
 
 "Wend. 513 17 
 
 Schemer / . Lamp, 17 Mo. 142 41 
 
 Schooler /•. Ashevst, 1 Dana. 216 5 
 
 Seholey v. Mumford, 64 X. Y. 521 37 
 Schoomaker r. Elmendorf, 10 Johns. 
 
 49 140 
 
 School Trustees v. Stocker, 13 Yr. 
 
 117 45 
 
 Schofield r. Doscher, 72 N. Y. 
 
 591 1.54 
 
 V. Whitleggc, 33 X. Y. 
 
 Superior (.'t. 381 161 
 
 Schmedt v. United Ins. Co. 1 Johns. 
 
 63 155 
 
 Schneider r. State, 8 Ind. 410 78 
 
 Scott I . Lewis, 7 C. & P. 347, 
 
 22, 153, 167 
 V. Stansfield, L. R. 3 Ex. 
 
 220 122 
 
 V. Patterson, 1 A. K. Marsh. 
 
 441 85, 141 
 
 V. Shepperd. 2 W. Black, 
 
 892 64 
 
 Scripps V. Rielly, 35 Mich. 371 185 
 
 Schucfield V. Emmerson, 53 Me. 
 
 465 64 
 
 Schulenburg v. .Martin, 10 Eep't. 
 
 230 67 
 
 Schwartzwelder v. U. S. B'k. 1 
 
 J. J. Marsh. 38 32 
 
 Shuf r. Stilwell, 6 Halst. (X. J.) 
 
 282 1 
 
 Sill r. Brown, 1 Johns. Ch. 444 127 
 
 V. Thomas, 8 0. & P. 762 13 
 
 Silvers v. Hedges, 3 Dana. 439 57 
 
 Silverman v. Foreman, 3 K. D. Sin. 
 
 322 82 
 
 Silk V. Humphrey, 7 C. & P. 14 
 
 Sims V. Harris, 8 B. Mon. 55 141 
 
 Simonton v. Winter, 5 Pet. 141 
 
 1, 91, 149 
 
 Simpson v. Watrohs, 3 Hill. 619 16 
 V. Sprague, 6 Me. 470 146 
 Simmons v. Jenkins, 76 111. 482 
 
 4,161 
 Simcoke v. Frederick, I Ind. 54 
 
 161, 162 
 Sinnixon v. Daugan, 8 X'. Y. Ij. 
 
 226 148 
 
 Sines v. Tyre, 3 P.rev. (S. 0.) 249 86 
 Singleton v. Willetts, 1 Xott. & M. 
 
 355 167 
 
 Singleton's Will, 8 Dana. 315 66 
 
 V. Scott, 31 Iowa, 589 1 
 
 Shells V. West, 17 Cal. 324 58 
 
 Sleeper v. Yan Middles worth, 
 
 4 Denio, 431 66 
 
 Slack V. Cotton, 2 E. D. Sm. 398 27 
 Slater r. Maxwell, 6 Wall, 275 188 
 Smart v. Eayner, 71 114, 131, 144 
 
 Smith V. Newburgh, 19 Alb. L. .1. 
 
 Whitacre, 23 111. 367 60 
 V. Johnson, 13 Ind. 224 40 
 
 V. Billett, 15 Cal. 23 100 
 
 V. County, 54 ]Mo. 5H 68 
 
 D. Richmond, 18 Cal. 496 41 
 V. Smith, 4 Paige, 432 66 
 
 V. Martin, Car. & M. 58 1 H2 
 
 and Bennett c. State, 12 Vr. 
 
 .385 36 
 
 V. Thompson, 2 Serg. & R. 
 
 48 " 40 
 
 V. Joice, 12 Barb. 21, 24 Wend. 
 
 15, 1 Den. 175 47 
 
 V. Mcllvaine, 68 Ga. 287 :;4 
 
 V. Lovell, 10 Com. B. 23 3 
 
 et als. V- Applegate, 3 Zeb. 
 
 352 128 
 
 r. Higgen^i, 16 Gray. 251 122 
 V. Keen, 26 Me. 40 
 
 V. M. S., 2 Wall. 219 144 
 
 V. Wood, 31 Md. 293 162 
 
 V. Wilson, 1 Dev. & B. 
 
 (X. ('.)L. 40 116 
 
 V. Carley, 8 Ind. 451 14 
 
 V. K. R. 37 Mo. 287 14 
 
 & Bennett v. State, 12 Yr. 
 
 371 35, 59, 60 
 
 i: Davis, 7 0. & P. 307, 
 
 16, 23. 145 
 V. Groom, 7 Fla. 81 69, 72 
 
 ■i'.Sergent, 67 Barb. 243, 
 
 18, 90, 100, 165 
 
 Snell V. Deland, 43 111, 323 86, 141 
 
 Snow V. Batcheldor, 8 Cush. 40 92 
 
 Snevely v. Jones, 9 Watts. 433 73 
 
 Soloman v. Dreschler, 4 Minn. 278, 
 
 14 To 
 
 Southworth v. Hoag, 42 111. 446 21 
 
 Soward v. Legatt, 7 C. & P. 613, 
 
 23, 127, 147 
 
*AfeLtl of cAsi^s di-tfifi. 
 
 Sparks t). Com. 3 Bush. Ill 64 
 
 Sprague v. Duel, 1 Clark. Ch. 90 66 
 
 V. Craig, 51 111. 288 183 
 
 Spaulding v. Mayhall, 27 Mo. 371 34 
 
 V. Hood, 8 Cush. 602 94 
 
 V. Harvey, 7 Ind. 429, 
 
 21, 34, 43 
 Wpiers V. Farker, 1 T. E. 141 14 
 
 Spears v. International Ins. Co. 
 
 57 Tenn. 379 191 
 
 Sperry's v. Case, 9 Leigh. (Va.) 
 
 623 171 
 
 Spooner v. Holmes, 102 Mass. 
 
 505 68 
 
 V. Keeler, 51 N. Y. 526 122 
 Springer v. Beeves, 4 N. J. L. 207 34 
 Spratt V. McKinney, 1 Bibb. 595 141 
 Squire v. State, 46 Ind. 459 71. 72 
 
 Stanton v. Paton and Wile, 1 Car. , 
 
 & Kir. 148 45 
 
 Starmouth v. "Waterloo Life Ins. Co. 
 
 1 P. & P. 220 
 Stapp V. Thompson, I Dana. 214 
 Starr v. Ellis, 6 Johns. Ch. 393 
 et als. V. Pick, 1 Hill. 270 
 Stacy V. Cobb, 36 111. 349 
 Stanghin v. State, 17 Ohio St. 453 
 Stansfield v. Levy, 3 Stark 8, 
 
 137, 138, 
 State V. Crotian, 28 Vt- 14 
 V. Vance, 17 Iowa. 138 
 V. Carney, 37 Me. 149 
 V. Cox, 32 Mo. 566 78 
 
 V. Wade, 34 N. H. 495 78 
 
 V. Abbott, 31 N. H. 434 78 
 
 V. Zellers, 2 Halst. (N. J.) 
 
 220 81 
 
 V. Lea, 3 Ala. 602 50 
 
 V. Williams, 20 Iowa, 98 78 
 
 V. Belausky, 3 Mijin. 246 38 
 
 V. Anderson, 4 Nev. 265 41 
 
 V. Bruike, 9 Iowa, 203 78 
 
 V. Beard, 1 Dutch. N. J. 
 
 384 169 
 
 V. Hunton, 28 Vt. 594 54 
 
 V. Bailey, 16 Ind. 46 56 
 
 V. Millican, 15 La. Ann. 
 
 577 197 
 
 V. Redemeier, Mo. 1880, 
 
 10 Rep'tr. 272 71 
 
 V. Patterson, 45 Vt. 308 43 
 
 V. Coin, 9 Humph. 175 65 
 
 V. Godfrey, 24 Me. 232 78 
 
 V. Johnson, 19 Iowa, 230 172 
 V. Mathis, 3 Ark. 34 169 
 
 V. Hurley, 54 Me. 562 170 
 
 V. Wilson, 15 Mo. 503 169 
 
 V. Coleman, 5 Port. Ala. 
 
 32 179 
 
 124 
 5 
 67 
 13 
 41 
 78 
 
 142 
 
 182 
 64 
 
 78 
 
 State V. Jones, 54 Mo. 47^ l^i 
 
 V. Clarkson, 30 Ala. 378 170 
 V. Dayton, 3 Zeb. (N. J.) 
 
 49 169 
 
 t;. Staker, 3 Ind. 570 169 
 
 V. McNamara, 3 Nev. 170 170 
 
 V, Barnes, 29 Me. 561 169 
 
 V. Ross, 29 Mo. 32 41 
 
 V. McGingley, 4 Ind. 7 21 
 
 V. Lewis, 22 N. J. L. 564 56 
 
 V. Conrad, 21 Mo. 271 170 
 
 V. Page, 21 Mo. 257 185 
 
 V. Lightbody, 38 M.e. 200 170 
 
 V. Miller, 24 Conn. 522 78 
 
 V. Powers, 25 Com. 48 78 
 
 V. Rockafellow, 1 Halst. (N. J.) 
 
 334 169 
 
 V. Hmitli, 2 Ired. (N. C.) L. 
 
 402 
 V. Hensley, 7 Blackf. 324 
 V. Brown, 12 Minn. 538 
 V. Brooks, 9 Ala. 10 
 V. Keoch, 13 La. Aun. 243 
 V. Brown, 8 Humph. (Tenn.] 
 
 89 
 V. Dochester, 42 Iowa. 436 
 V. Weaver, 18 Ala. 293 
 V. Middleton, 5 Port. Ala. 
 
 484 
 V. Hunton, 28 Vt. 594 
 V. Wilkins, 17 Vt. 151 
 V. Groom, 10 Iowa. 108 
 V. Sweetser, 53 Me 438 
 V. Parr, 33 Iowa, 553 
 V. Dresser, 54 Me. 569 
 V. Hundly, 46 Mo. 414 
 V. Shiflet, 20 Mo. 415 
 V. O'Conner, 65 Mo. 374 
 V. Harkin, 7 Nev. 377 
 V. Sooy, 12 Vr. 401 
 V. Snow, 18 Me. 346 
 V. Wilson, 3 111. 225 
 V. Snell, 46 Wis. 524 
 V. Saliba, 18 La. Ann. 35 
 V. Klinger, 46 Mo. 224 
 V. Dancy, 78 N. C. 437 
 V. Jones, 5 Ala. 667 
 V. Collier, 15 Mo. 293 
 V. Melton, 8 Mo. 415 
 V. Teibleman, 28 Ark. 424 
 V. Lawson, 14 Ark. 114 
 V. Radowitz, 8 Rep'tr. 263 
 V. Howard, 4 McCord, (S. C. 
 
 159 
 V. Garland, 3 Dev. (N. C.) 
 
 114 
 V. Patterson, 45 Vt. 308 
 V. Knapp, 45 N. H. 148 
 V. Crotean, 28 Vt. 14 
 
 174 
 170 
 64 
 170 
 173 
 
 Ho 
 
 191 
 
 171 
 
 170 
 
 153 
 
 171 
 
 170 
 
 170 
 
 190 
 
 171 
 
 35 
 
 78 
 
 38 
 
 35 
 
 38 
 
 34 
 
 40 
 
 31 
 
 34 
 
 183 
 
 35 
 
 321 
 
 9 
 
 24 
 
 53 
 
 60 
 
 67 
 
 50 
 
 50 
 61 
 62 
 35 
 
TABLE OP CASKS CITED. 
 
 261 
 
 Stevens v. Peats. 12 Vr. 340 50 
 
 V. Brennan, X.Y. Jan. 1880, 
 
 91 Rept'r 281 48 
 
 V. Cofferin, 20 N. H. 150 141 
 
 V. Camphell, 21 Pa. 471 199 
 
 c. Weleh, 7 0. & V. 60 201 
 
 Stephen v. State, 11 Ga. 225 170 
 
 Stevenson v. Man, 9 111. 572 18 
 
 Sterns v. Raymond, 26 Wis. 74 162 
 
 Stewart r. Hotchkiss, 2 Cow. 634 
 
 26, 129 
 Stewart c. Ashley, 34 Mich. 183 74 
 V. Canty, 8 M. & W. 160 46 
 Stewardson v. AVhite, 3 Har. & M. 
 
 455 1 
 
 8tcrry r. Schuyler, 23 Wend. 487 132 
 Stcmraers v. Yearsley, 1 Bing. 35 3 
 Steeele v. Townsend, 37 Ala. 247 21 
 Steinman v. McWilliams, 6 Barr. 
 
 170 51 
 
 Sterns v. James, 14 Allen, 582 41 
 
 Stearns v. Stearns, 32 Vt. 678 56 
 
 St. George v. St. Margaret, 1 Salk. 
 
 123 52 
 
 St. John i: R. R., 1 Allen, ,544 21 
 
 St Johns V. Kidd, 26 Cal. 263 40 
 
 Suiter V. Lackman, 39 Mo. 91 57 
 
 Stackwell v. M. & S. 13 Wall, 53 149 
 Stoner v. Peop. 56 N. Y. 319 120 
 
 Shotwell V. Malt. 38 Barb. 445 207 
 Stone V. Hubbard, 17 Pick. 217 150 
 Stovel V. Westcott, 2 Day, (Conn.) 
 
 422 146 
 
 Strong r. Smith. 3 Cai. 160 2 
 
 Street v. Goss, 62 Mo. 226 58 
 
 St. Louis, &c. Ins. Co. v. Cohn, 29 Mo. 
 
 421 155 
 
 Streety c. Wood, 15 Barb. 105 122 
 
 Stroud >:. Erith. 300 42 
 
 V. Springfield, 28 Te.x. 649, 
 
 96 151 
 
 Stubhs V. L^ison, et als. 1 Mees. & W. 
 
 728 3 
 
 r. Lea, 64 Me. 195 53 
 
 r. Buckalew, 4 Dutch. 150 139 
 
 Sullivan v. Kelly, 3 Allen, 148 52 
 
 / . Goldman, 19 La. Ann. 
 
 12 65 
 
 V. R. B. 30 Pa. St. 235 21 
 
 Sullenburgev v. Gest. 140 204, 94 
 
 Summons v. Jenkson, 76 111. 482 70, 91 
 
 Sunbury & E. R. R. Co. v. Hummell, 
 
 27 Pa. 99 149 
 
 Sutters V. Lackman, 39 Mo. 910 57 
 
 Sutton V. Manderville, 1 Or. C. C. 
 
 187 ■ 101 
 
 V. Sadler, 3 C. B. (N. S.) 87 21 
 
 Sydam v. MofiFatt, I Sandf. 464 121, 148 
 
 Sy. Ins. Co, v. Schriffler, 42 Pa. 
 
 188 
 
 40 
 
 Sylvester v. Hall, R. & M. 255 13C 
 
 Syraes v. Parly, 2 C. & P. 258 70 
 
 Swift V. Appleton, 23 Mich. 252 63 
 
 Swan V. State, 4 Humph. 136 61 
 Swarlswclder v. U. S. B'k. 1 
 
 J. J. Marsh. 38 5 
 
 T. 
 
 Tarbel v. White River B'k., 24 Vt. 
 
 655 207 
 
 Tarry v. State, 42 Tex. 272 61 
 
 Taber v. Jenny — Sprague, 315 48 
 
 Tanner v. Hughes, 53 Pa. 229 6, 33 
 Tappan v. Jennes, 21 N. H. 232 96, 97 
 TUttan V. Great Western R. R. Co. 
 
 2 Bl. & El. 844 146 
 
 Taylor v. Mosey, 6 C. & P. 273 144 
 
 V. Hall, 20 Tex. 211 1,30 
 
 r. Doremus, 1 Harr. (N. J.) 
 
 473 57 
 
 Tellew V. Tellew, 54 Pa. 216 66 
 
 Tenney t'. Walston, 41 111. 215 66 
 
 Tenn.d ^A'right i;. Johnson, Ad. on Ej. 
 
 256 156 
 
 Terry r. Field, 10 Vt. 353 120 
 
 V. Life Ins. Co. 1 Dill. 403 124 
 
 Thayer v. Stearns, 1 Pick. 109 62 
 
 Thatcher v. Hurm, 12 Iowa. 303 
 
 70,94 
 Thompson v. Barkley, 3 Cas. 263 44 
 T'hompson r. Grimes, 5 lud. 385 42 
 Thompson v. Com. 20 Gratt. 274 172 
 Thompson v. Lyon, 14 Cal. 39 140 
 
 Thompson v. French, 10 Yerg. 
 
 452 149 
 
 Thornton r. Sprague, Wright (0.) 
 
 645 94 
 
 Thorpe v. N. Y. C. & H. B. R. Co. 
 
 77 N. Y. 402 67 
 
 Thompson v. Thompson, 9 Ind. 
 
 323 92, 94 
 
 Thomas v. State, Mo. 457 171 
 
 Thomas v. Dunaway, 30 111. 373 121 
 Thomas v. Newton, M. & M. 48 206 
 Thomas v. Spafford, 46 Me. 408 
 
 Thomas v. Frederick Co. School, 
 
 7Gill. &J. 369 64 
 
 Thurbnr v. Harlem Bridge &c. B. 
 
 R. Co. 60 N. Y. 326 33 
 
 Thurtell v. Beaumont, 1 Bing. 339 51 
 Thurston v. Kennet, 22 N. H. 152 
 
 30, ] 13, 162, 167 
 Thwaites v. Swainsbury, 5 C. & P. 
 
 69 90, 96, 142 
 
 Thyme v. Prother, 2 M. & S. 96 
 
 Tipton V. Triplett, 1 Mete. (Ky.) 
 
 570 87 
 
 Tibbets ^,«Tilton, 23 N, IT. 120 2 
 
262 
 
 TABLE OP CASES CITED. 
 
 Titfiold /■. Atlams, 32 Iowa. 487 41 
 
 Tin r. ^Vharf Co. 7 Cal. 258 48 
 
 Tindall v. Baskett, 2 F. & F. 644 
 
 100, 102, 133 
 Tinkbam r. Thomas, 2 J. & Spr. 
 
 238 40 
 
 Tober r. IIutsoTi,5 Intl. 322 
 
 Tobin c. Jenkins, 29 Avk. 1.5'J 
 
 3 67,188 
 Todd c. Whitney, 27 Me. 480 43 
 
 Todd V. Jackson, 2 Dutch. 525 
 
 150, 151 
 Toledo & E. R. Co. v. Pence, 
 
 68 111. 254 14, 75 
 
 Tomlinson v. Collins, 20 Conn. 
 
 364 162, 161 
 
 Tood V. Winans, 36 Cal. 129 15S 
 
 Tood V. AVhitney, 27 Me. 480 32 
 
 Toney v. Field, 10 Vt. 353 2 
 
 Topoan v. Jenness, 21 N. H. 232 
 
 29, 167 
 Town ]Man. Co. v. Foster, 51 Barb. 
 
 351 . 38 
 
 Townsend v. Kearnes, 2 Watts. 
 
 (Pa.) 180 161 
 
 Townsend v. Jeffries, 24 Ala. 329 40 
 
 V. Townsend, 7 Gill. 10 160 
 
 Trapnall v. I\Iemck, 21 Ark. 503 149 
 
 'J'rans Co. v. Wamslintta Co. 63 Pa. St. 
 
 17 
 Trafton v. Rogers, 13 Me. 315 
 Tracy v. Fuller, 13 Mich. 257 
 
 21 
 57 
 53 
 2L 
 42 
 
 Tredwell v. Joseph, 1 Sumn. 390 
 
 V. Wells, 4 Cal. 260 
 'L'riscol ('. Newark Co. 37 N. Y. 673 64 
 V. Hanibal, etc. E. E. Co. 35 
 Mo. 416 185 
 
 Trott V. West, 1 Meigs, 163 94 
 
 Tenwiek v. Floyd, H. & J. (Md.) 
 
 172 159 
 
 Tucker v. Biting, 32 Pa. 428 85 
 
 V. Meeks, 2 Sw. (N. Y.) 736 59 
 
 f. Henniker, 41 N. H. 317 183 
 
 V. Ladd, 7 Cow. 453 1, 2 
 
 Turnley v. ^McGregor, 6 Man. & Gr. 
 
 4G 2 
 
 Tnrnson c. Moulton, &c. 3 Cush. 
 
 269 47 
 
 Tuzzle V. Barkley, 6 Ala, 406 • 38 
 
 'i'ult u. Slaughter, 5 Gratt. 464 85 
 
 Turner v. State, 40 Ala. 21 170 
 
 I'. Cool, 23 Ind. 356 160 
 
 Tuberville v. Patrick, 4 C. & P. 
 
 557 95, 153 
 
 Tyre r. Morris, 188 
 
 u. 
 
 Underhill v. Bllicombe, 1 M'Clcl. 
 & y. 457 149 
 
 Usher v. Severance, 20 Me. 9 121 
 
 Union B'k. v. Mott, 27 N. Y. 147 
 
 Ulrich V. Muhlke, 61 111. 499 59 
 Ulmer v. Cunningham, 2 Me. 117 
 
 86, 101 
 
 U. S. V. Wiggins, 13 Pet. 374 7 
 V. Wilson, Baldw. 99 182, 35 
 V. McCormick, 1 Cr. 0. C. 
 
 . 591 78 
 
 V. Hayward, 2 Gall. 78 
 
 V. Lawrence, 4 Cr. C. C. 514 64 
 
 V. Kirkpatriok, 9 Wheat. 738 67 
 Bank v. Smith, 11 Wheat. 
 
 171 85, 85 
 
 V. Wardwell, 5 Mason, 82 67 
 
 V. "Williams, AVare. 175 85 
 
 V. Seokie, Sprague, 227 171 
 
 V. Mayo, 1 Curt. 433 171 
 V. Shoemaker, 2 McLean. 
 
 114 173 
 
 V. Potter, 6 McLean, 186 170 
 
 V. Stowell, 2 Curt. 153 169 
 
 V. Eoss, 2 Otto. 283 56 
 
 V. Garbcrry, 2 Cr. C. C. 358 53 
 
 V. :\LcClure, 1 Curt. 1 64 
 V. David Bates, 2 Cranch. 
 
 C. 0. 405 197 
 
 V. Gilbert, 2 Sumn. 19 38 
 
 V. 
 
 Vaden v. Ellis, 18 Ark. 355 153 
 
 Vadaken v. Soper, 1 Ark. (Vt.) 
 
 289 14 
 
 Vantorch *■. Griffin, 78 Pa. 504 145 
 Vancleave r. Beam, 2 Dana. 155 160 
 Van Arsdale v. Van Arsdale2 Dutch. 
 
 414 98 
 
 Vanzant v. Jones, 3 Dana. 464 189 
 
 Vanneman v. Bradley, 69 111. 299 161 
 
 Van Benschoten v. Yaple, 13 How. Pr. 
 
 97 120 
 
 149 
 
 42 
 
 151 
 
 Van Duzen v. Blum, 18 Pick. 299 
 Van Buskirk r. Day, 32 111. 260 
 
 V. Irving, 7 Cow. 35 
 Vanee v. Vance, 2 INIetc. (Kv.) 
 
 581 
 
 Van Buren v. Wells, 19 Wend. 204 38 
 Van Victor v. McKillup, 7 Blackf. 
 
 '578 
 Vasse V. Smith, 6 Cranch. 226 
 Vaughn v. Porter, 16 Vt. 266 
 V, Bason, 4 Yeates. 54 
 V. Havens, 8 Johns. 109 
 Vaughan ?•, Taff. V. R. Co, 37 Me. 
 92 
 
 103 
 
 33 
 
 146 
 
 41 
 
 85 
 
 130 
 
 149 
 
 Verths V. Hagge, 8 Iowa. 163 5,21,114 
 
TABLE OF OASES CITED. 
 
 263 
 
 Tennilge r. Adams Ex. Co. 21 Wall. 
 
 1:^8 G8 
 
 Vide /■. Germ. Ins. Co.. 2G Iowa. 
 
 9 101, 142 
 
 Vii\ ton r. Breuall, 1 Wash. V. 0. 
 
 4(57 81 
 
 w. 
 
 Waddington v. Loker, 44 Mo. V?,2 58 
 Wadfworth v. Woodford, 1 Day. 
 
 28 140 
 
 Wagner v. Bell, 4 Monr. 7 <,)3 
 
 AValcott L\ Haleombe, 31 N. Y. 
 
 125 21 
 
 Wallace v. Harris, 32 Mich. 394 02 
 AVallis V. Warren. 4 Wells. H. A C. 
 
 361 ' 2 
 
 Walter ?:. Bennett, 16 N. Y. 250 ;iH 
 Waif (. Chulker, 31 I'oini. 121 63 
 
 AValdsworth f. AVakL- worth, 20 Me. 
 
 1:)6 1^6 
 
 Walrod v. Ball, 9 Barb. 271 66 
 
 AValdsmith t. Waldsmith, 2 0. 
 
 1,56 141 
 
 AValker v. Smith, 29 Beav. 396 ^^ 
 
 V Fitts, 24 Pick. 191 149 
 
 AValler v. Morgan, 18 B. Mon. 136 
 
 18, 87 
 
 Warner v. Crew, 22 Iowa, 31.5 62 
 
 €. Henley. 48 Pa. Iy7 68 
 
 V. Haines, 6 C & P. 666 124 
 
 V. Dmiavan, 23 111. 380 42 
 
 V. Haines, 6 C. & P. 7L7 142 
 
 WaVth c. Gilling, L. R. 2 C. P. 1 63 
 
 AVarren i. State, 4 Blackf. 159 34 
 
 AVards '_ . Case. 3 Leigh, (Va.) 
 
 748 IH.". 
 
 t. Bartlett, 12 Allen. 419 15(1 
 
 Warden v. State. 18 (ja. 264 49, 71 
 
 Watts V. Garreti, 3 <_iill. i: J. 355 37 
 
 AVatkins o. (ji-egory, 6 Blackf. 
 
 133 " 87 
 
 Watson (,'. Seat. 8 Fla. 446 100 
 
 V. Higgins, 7 Ai'k. 475 91 
 
 Waul V. Kirkman, 27 Miss. 283 85 
 
 Wayman v. Taylor, 1 Dana. 257 70 
 Webb u. Chambers, '3 Ired. [N. C] 
 
 L. 374 73 
 
 Wedlock V. Brown, 4 Mo. 870 76 
 
 Weildlar v. The Farm. B'k of I^aiis. 
 
 11 Serg. <fe K. 134 38 
 
 Weiss /;. B. R., 2 Weekly, N. 214 '47 
 Welsh v. Cochran, 63 N. Y. 181 56 
 V. Darrah, 52 N. Y. 590 146, 27 
 Werton v. Gravlin, 49 V't. 507 71, 49 
 Wet B. R. Co. y. Hill, 7 Ala. 772 149 
 Wheeler u. Hill, 16 Miss. 329 37 
 
 VN'herley v. State, 11 Humph. 172 78 
 
 Wheelton o. Hardisty, 8 E. & B. 
 
 263 188 
 
 Whikier v. Praidclin, 46 N. H. 23 63 
 Whipple ('. Oumb. Man. Co. 2 Story. 
 
 661 99 
 
 Wheting c. Paniel, 1 Hen. & Mun. 
 
 391 68 
 
 et als. c. City B'k. 77 X.Y. 
 
 367 67 
 
 AYitford c. Southbridge, 119 Mass. 
 
 564- 47 
 
 Whity V. Douge, 9 Iowa. 597 100 
 
 Whitley v. Adams, 15 C. B. (N. S.) 
 
 418 122 
 
 Whitney v. Nichols, 64 111. 230 69, 72 
 
 V. Syude, 16 Vt. 679 4(1 
 
 /'. Merchants Nat. B'k. 
 
 llVr.481 129 
 
 White /'. (Carroll, 42 N. Y. 162 122 
 
 V. Lincoln, 8 Ves. 363 62 
 
 c. Hass, 32 Ala. 430 42 
 
 (.'. Murtland,71 111. 252 33 
 
 Wilkes V. Hopkins, et als. 140 
 
 Wicks ('. Smith, 18 Kans. 508 38, 184 
 
 Wilco.x V. Smith, 5 Wend. 231 53 
 
 Willough V. Dewey, 54 111. 266 191 
 
 AVilde V. Armsley, 6 Ciish. 314 144 
 
 Wilds t). R, R. 29 N.Y. 315 63 
 
 AVilmet v. Harmer, et al. 8 C. & P. 
 
 695 51 
 
 "Wilkinson i:. Moselv, 30 Ala. 562 130 
 Wills ('. Stamps. 3(5' Tex. 48 154 
 
 V. Kane, 2 Grant. (Ais. Pa. 
 60 97 
 
 Wilby V. EUstou, 8 C. B. 142 121 
 
 Willis c. the Com. Va. Nov. 1979, 
 
 9 Rept'r. 157 6L 
 
 AVilkins r. Earle, 44 N. Y. 172 65 
 
 Williken c. Barr, 7 Pa. 23 , 45 
 
 AN'ilkes /■. Hopkins, et als. 6 Man. 
 
 \- Gr. 36 14, 24, 133 
 
 Willard r. Whitney, 49 Me. 235 56 
 
 et als. I . 'riioi'n, 56 N. Y. 
 442 21 
 
 Wilmarth v. Babcock, 2 Hill. 194, 
 
 130 132 
 
 Williamson i. Allison, 2 East. 446 146 
 (. Ring-old, 4 Cr. C. C. 
 
 39 160 
 
 V. Melvin, 13 Grav, 73 58 
 V. Hobday, 4 M. & S. 
 
 125 * 69 
 
 V. Kinuey, 14 111. 27 94 
 -/'. Hodges, 2 East. 312 66 
 r. Craven, 8 Mees. & W. 
 
 593 19 
 
 V. .Johnson, 1 Greene. 
 
 Iowa. 147 151 
 
 V. Tazier, 11 Graft. 
 
 477 58 
 
264 
 
 TABLE OF CASES CITED. 
 
 Williamson v. State, 3 Hisk. [Tenn.] 
 
 232 173, 182 
 
 Williams v. Com. Pa. Feb. 2, 1880, 
 
 9 Rept'r. 453 62 
 
 V. E. I. Co. 3 East. 192 52 
 V. Jarwin, 13 M. & W. 135 3 
 ^. Davies, 1 Cr. & M. 465 136 
 V. Vines, 1 Dowl. & L. 
 
 710 143 
 
 i;. State, 52 Ala. 411 172,190 
 V. Hays, 5 How. Pr. 4'70, 
 
 128 129 
 
 V. Thomas, 4 Oar. & P. 
 
 234 27,87,128,163,165 
 Winslow V. Seal, 6 Cal. 44 148 
 
 Winneger v. State, 13 Ind. 540 173 
 
 Winrioh v. Heffner, 38 Pa. 297 42 
 
 Winchell v. Edwards, 57 111. 41 62 
 
 Winans v. Winans, 1 9 N. J. Eq. 
 
 220 21 
 
 Work V. McClay, 2 Serg. & R. 416 42 
 Woodbeok v. Keller, 6 Cow. 118 51 
 Woodward v. Lander, 6 C. & P. 
 
 548 122 
 
 Woodruff i;. Shurlby, 39 Iowa. 344 21 
 Woolley V. Carter, 2 Halst. 85 110 
 
 Wooden v. Strom, 10 Pr. 48 128 
 
 Wooten V. Barton, 1 M. & R. 518, 
 
 114 123, 125, 147 
 
 Wood V. Jackson. 8 Wend. 9 97 
 
 V. Terry, 4 Lans. 80 53 
 
 V. Fithian, 24 N, J. L. 33 86 
 V. Rowan, 5 Johns. 41 99 
 
 V. Priiigle, 1 M & R. 277, 
 113 127, 146 
 
 Woodgate v. Potts, 2 Car. & Kir. 
 
 458 81, 102. 142, 133 
 
 Worrall v. Parmelee, 1 N. Y. 519 16 
 Wrigglesworth v. Aikins, 5 Cush. 
 
 293 92 
 
 Wright V. State, 5 Ind. 290 '173 
 
 V. Whiston, 4 A. & C. 
 
 667 60 
 
 Wynn v. Lee, 5 Ga. 217 287 
 
 Wyall V. Buell, 47 Cal. 624 122 
 
 Y. 
 
 Yingling v. Hesson, 16 Md. 112 154 
 Young V. State, 2 W. Va. 579 171 
 
 V. Black, 7 Cr. 565 285 
 
 V. Hayden, 3 Dana. 145 169 
 V. Catlett, 6 Dana. 442 3 
 
 V. Davis. 39 Ala. 213 14, 153 
 V. Highland, 9 Gratt. 16 
 
 103, 105, 118 
 V. Painer, 1 Csh. 103 
 
 137.138, 142 
 
 Zabriskie v. Smith, 13 N. Y. 338 40 
 
 Zerb V. Miller, 16 Pa. 488 58 
 
 Zerger v. Sailer, 6 Binn. 25 41 
 
 Zents V. Leonard, 70 Pa. St. 192 147 
 
 (To be made with a pen. ) 
 
 N. B. — Make the corrections in the line counting from the bottom. 
 
 Page 38 in the 6th for "axionialio" read axiomatic. 
 
 " 41 " " 2d " "disreputed" " disputed. 
 
 " 54 " " IBtli " "necessary" " unnecessary. 
 
 " 58" "10th" "predicted" " 2^'re^icated. 
 
 " 58" "28th " "prescription"" jiresumption. 
 
 " 73" "12th " "places" " persons. 
 
 " 82" " 9th " " contvadiction" read contradictionin. 
 
 " 87" "19th" "effectual" " ineffectual. 
 
 " 119" " 6th " "election" " action. 
 
 II ]^3g 11 11 fiifn sifter "sxxcb" add pleii.'' in abatemcnf.