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is, that he begins who in the absence of proof on either side would substantially fail in the action." This includes those actions for unliquidated damages noticed below, in which the plaintiff must give some evidence in order to get substantial damages, although he would, if no evidence were given on either side, be entitled to a verdict for a nominal amount, for such a verdict would be a substantial failure. See 45 L. T. pp. 196, 219, on The Right to begin.

Where, in an action by indorser against acceptor, defendant pleaded that the bill was for the drawer's accommodation, and that plaintiff did not give any consideration to the drawer, to which plaintiff replied that it was indorsed to him by the drawer for a good consideration: held, that as a consideration is presumed, the defendant must begin by proving the want of it, or some suspicious circumstances to throw the proof on the plaintiff. Mills v. Barber, 1 M. & W. 425; Accord. Lewis v. Parker, 4 Ad. & E. 838. In a declaration on a policy on a life, the plaintiff averred that the deceased had led a temperate life, which was denied by the plea; held that the onus probandi, and therefore the right to begin, was with the plaintiff, as he was bound to give some evidence that the life was insurable, though it was contended that intemperance was not to be presumed. Huckman v. Fernie, 3 M. & W. 505; Accord. Rawlins v. Desborough, 2 M. & Rob. 70. And the same point was ruled in two other cases in which the issue raised on the plea was respecting the health of the insured; Geech v. Ingall, 14 M. & W. 95; Ashby v. Bates, 15 M. & W. 589; although the plea, alleging a specific complaint, ended with a verification in the last case. Where an issue on the sanity of a person was directed by Chancery, the court presumed that the person ordered to be plaintiff was to begin. Frank v. Frank, 2 M. & Rob. 314.

So, in general, if the affirmative of the issue lie on the defendant, and the plaintiff do not seek to recover unascertained damages within the rule on that subject presently noticed, the defendant's counsel begins (after the pleadings have been opened by the plaintiff), and has the general reply. Cotton v. James, M. & M. 275; Jackson v. Hesketh, 2 Stark. 518. So, where lib. ten. was pleaded, and no general issue. Pearson v. Coles, 1 M. & Rob. 206. So, where the defendant, a constable, being sued in trespass pleaded a justification without the general issue, it was held, that his counsel, admitting a demand of a copy and perusal of the warrant (24 Geo. 2, c. 44) and the damages claimed, was entitled to begin. Burrell v. Nicholson, Id. 305. To trespass q. c. f. the defendant pleaded a right to a watercourse and entry to remove obstructions, the plaintiff traversed the right: held, that the judge might properly allow the defendant to begin, unless the plaintiff undertook to prove substantial damage. Chapman v. Rawson, 8 Q. B. 673. So, where a defendant in replevin pleads property in a third person, A., and not in the plaintiff, to which the plaintiff replies that the property is not in A., but in the plaintiff, the defendant is entitled to begin. Colstone v. Hiscolbs, 1 M. & Rob. 301. And where, to an action of covenant for repayment of money, the defendant pleaded that the deed was given to secure money lost by gambling, it was ruled that the defendant was entitled to begin. Hill v. Fox, 1 F. & F. 136.

But where by order of court the defendant is under an obligation to admit the plaintiff's case, this does not necessarily deprive the plaintiff of his right to begin. Thwaites v. Sainsbury, 5 C. & P. 69. Nor does the admission by the defendant's counsel of all the facts, the proof of which are on the plaintiff, give the defendant the right to begin, where the admission of these facts might have been made in pleading. Pontifex v. Jolly, 9 C. & P. 202; Price v. Seaward, Car. & M. 23.

In many cases where damages, and not the decision of a mere right, have been the object of an action, defendants used so to plead as to take an affirmative issue on themselves, and thereby attempt to exclude the plaintiff's right to a general reply. The judges, however, came to a resolution that "In actions for libel, slander, and injuries to the person, the plaintiff shall begin, although the affirmative issue is on the defendant." Mercer v. Whall, per Ld. Denman, C. J., 5 Q. B. 447, 462. The resolution, however, is not to be taken as confined to those actions, or introducing a new practice, but as a declaratory of a principle applicable to other actions. See Ib. 456, 463. The general rule, therefore, as laid down in this case, is, that wherever the record shows that something, even damages only, is to be proved by the plaintiff, he ought to begin, whether the action be in contract or tort. Where the damages are of ascertained amount or must be nominal, then it seems that the defendant may begin, if the pleading will admit of it. See Ib. 455, 465. See further as to this resolution Cannam v. Farmer, infra, and cases cited in Mercer v. Whall, supra. Thus, in covenant for dismissing a clerk, the defendant pleaded misconduct, and plaintiff replied de injuriâ, &c.; held that plaintiff ought to begin. S. C. So, in an action on a promissory note to which defendant pleads, inter alia, payment into court, and issue is joined as to damages ultra, the plaintiff is to begin, though other issues lie on the defendant. Booth v. Millns, 15 M. & W. 663. On a note by the defendant, to which she pleads coverture when she made it, on which issue is joined, the defendant is to begin, although the plaintiff seeks to recover interest, not mentioned on the note. Cannam v. Farmer, 3 Exch. 698. In replevin and avowry for rent, plaintiff pleaded discontinuance of receipt for twenty years, and no distress within twenty years after the right accrued: replication, distress within twenty years and issue: held, that plaintiff should begin, because he must show when the distress was made. Collier v. Clark, 5 Q. B. 467. In trespass q. c. f., where the defendant pleaded a custom to divert water, which was traversed by the plaintiff, the defendant was allowed to begin, though the plaintiff's counsel asserted his intention of asking for heavy damages. Bastard v. Smith, 2 M. & Rob. 129; and per Tindal, C. J., "The plaintiff might have traversed the custom and new assigned excess, and then would have had a right to begin." Ibid. 132. Under Rules 1883, O. xxiii. r. 6, the plaintiff, instead of new assigning, would amend his statement of claim, or reply specially. In a similar action the defendant was also held entitled to begin, as the plaintiff's counsel would not pledge himself to go in for substantial damage. Chapman v. Rawson, 8 Q. B. 673. In Cann v. Facey, cor. Gurney, B., Exeter Sum. Ass. 1835, in an action of trespass for shooting a dog, where a defendant justified to prevent it from trespassing, the plaintiff was held entitled to begin, though the defendant offered to admit the value of the dog; for per cur., "the plaintiff may have damages beyond that amount"; and a similar ruling by Ld. Tenterden was cited. Accord. in a case of justification for shooting a mad dog; Shapland v. Cockram, Exeter Sum. Ass. 1844, per Patteson, J., after consulting Wightman, J. So, in Mills v. Stephens, Exeter Spring Ass. 1838, Bosanquet, J., held that plaintiff had a right to begin in a case of trespass for breaking into his house, where the issue was on a plea of leave and licence.

Under Rules, 1883, O. xxi. r. 4, "no denial or defence shall be necessary as to damages claimed, or their amount, but they shall be deemed to be put in issue in all cases unless expressly admitted." See also O. xix. r. 17, post, p. 301. But where the damages sought to be recovered are unliquidated, yet if the defendant admit at the trial the amount claimed

in the plaintiff's particulars, he will be entitled to begin, provided the material allegations in the defence are affirmative only. Lacon v. Higgins, 3 Stark. 178; Morris v. Lotan, 1 M. & Rob. 233; Bonfield v. Smith, 2 M. & Rob. 519; S. C. 3 C. & P. 463; Woodgate v. Potts, 2 Car. & K. 258; Tindall v. Baskett, 2 F. & F. 644, and 1 Taylor, Evid., § 355.

Where the affirmative of any one material issue is on the plaintiff, and he undertakes to give evidence upon it, he has a right to begin as to all; Rawlins v. Desborough, 2 M. & Rob. 328; Collier v. Clarke, 5 Q. B. 467; and it seems that judgment by default as to part has the same effect, though the defendant pleads affirmatively as to the residue. See Wood v. Pringle, 1 M. & Rob. 277. But where to an action on a bill and on an account stated, defendant pleaded payment to the first and non assumpsit to the second count, it was held that the plaintiff had no right to begin unless his counsel undertook to give some evidence of the account stated besides the bill. Smart v. Rayner, 6 C. & P. 721; Mills v. Oddy, Id. 728; overruling Homan v. Thompson, Id. 717, omn. cor. Parke, B.; Frith v. McIntyre, 7 C. & P. 44; Oakeley v. Ooddeen, 2 F. & F. 656; S. P. ruled by Cresswell, J., in Lanyon v. Davey, Bodmin Summer Ass. 1842. The plaintiff in replevin has the same right as in other actions, though both parties are actors. Curtis v. Wheeler, M. & M. 493.

Who is to begin in action for recovery of land.] In the now superseded action of ejectment the defendant might in some cases, by admitting a title in the plaintiff, entitle himself to begin, and the same principles will apply to the action for recovery of land introduced by the J. Acts, notwithstanding the use of pleadings therein. Thus, where the plaintiff claims as heir-at-law, and defendant as devisee, it is a settled rule that the defendant, by admitting plaintiff's pedigree and the dying seised, may entitle himself to begin and to reply. Goodtitle d. Revett v. Braham, 4 T. R. 497; Acc. Fenn v. Johnson, Adam's Eject., 2nd ed. 256, and Mercer v. Whall, 5 Q. B. 464, per cur. And the same principle applies although one of the plaintiffs had, since the death of the testator, become assignee of an outstanding term in part of the land; for " the real question in dispute is the validity of the will." Doe d. Smith v. Smart, 1 M. & Rob. 476, per Gurney, B., after conferring with Patteson, J. For the same reason, where the plaintiff claimed as heir of C. and as devisee and heir of R., who was C.'s heir, and the defendant claimed as devisee of C., the defendant's counsel was permitted to begin on admitting that plaintiff was heir of C. and of R., and entitled to recover, unless defendant proved C.'s will. Doe d. Wollaston v. Barnes, Id. 386, cor. Ld. Denman, C. J. See observations on this case in Doe d. Bather v. Brayne, 5 C. B. 655. Where the plaintiff claims as devisee of A., and the defendant as devisee under a subsequent will of A., the defendant cannot, by admitting the seisin of A. and the prima facie title of the plaintiff, entitle himself to begin. S. C., overruling Doe d. Corbett v. Corbett, 3 Camp. 368.

Generally, in order to entitle the defendant to begin by admitting the plaintiff's case, he must admit the whole without qualification. Doe d. Pill v. Wilson, 1 M. & Rob. 323. Therefore, where the plaintiff claims as the heir of A., and defendant under a conveyance by A. in his lifetime, the latter cannot deprive the plaintiff of the right to begin by only admitting the heirship of the plaintiff and seisin of A. unless defeated by the conveyance; Doe d. Tucker v. Tucker, M. & M. 536; for it is part of the plaintiff's case that A. died seised. So, where each party claimed as heir, and defendant admitted that plaintiff was entitled as heir if defendant was

not legitimate: held, that he could not by so doing obtain a right to begin. Doe d. Warren v. Bray, Id. 166.

Direction of judge as to who is to begin.] An erroneous ruling of the judge as to the proper party to begin will not, as a matter of course, entitle the party to a new trial. Brandford v. Freeman, 5 Exch. 734; Burrell v. Nicholson, 1 M. & Rob. 304; Bird v. Higginson, 2 Ad. & E. 160. But a clear case of error, by which an undue advantage may have been given to the successful party, or injustice done, is ground of new trial; Ashby v. Bates, 15 M. & W. 589; Edwards v. Matthews, 4 D. & L. 721; and one was accordingly granted in Doe d. Bather v. Brayne, ante, p. 281.

Right to reply.] In general, the party who begins has a right to the general reply when the opposite party calls witnesses. Where the defendant brings evidence to impeach the plaintiff's case, and also sets up an entirely new case, which again the plaintiff controverts by evidence, the defendant's reply is confined to the new case set up by him, for upon that relied on by the plaintiff the defendant's counsel has already commented in the opening of his own case; and the plaintiff is then entitled to the general reply. 1 Stark. Ev. 384. In strictness, Rules, 1883, 0. xxxvi. r. 36, ante, p. 271, make no difference in this respect, for it only enables the defendant to sum up his case; but this rule is not closely adhered to; vide ante, p. 272.

Where

Unless the defendant gives evidence, the plaintiff is not entitled to reply, there being no new facts upon which his counsel can comment. the defendant, on being called on by the plaintiff to produce a document, interposes with evidence to show it is not in his possession, this gives no general reply. Harvey v. Mitchell, 2 M. & Rob. 366.

Where the counsel for the defendant opened material facts to the jury, which he called no witness to prove, it was in the discretion of the judge to permit the plaintiff's counsel to reply. Crerar v. Sodo, M. & M. 85. And, where the defendant's counsel in a crown case read a paper or made statements of material facts likely to have weight with the jury without attempting to prove them, both Ld. Kenyon and Ld. Tenterden permitted a general reply. R. v. Bignold, D. & Ry. N. P. C. 59. As, however, under O. xxxvi. r. 36 (ante, p. 272), the defendant's counsel has to announce his intention to call witnesses at the close of the plaintiff's case, if he do not do so, he would not be allowed to open fresh facts in his speech, for it has been held that when he has allowed the plaintiff's counsel to sum up, he cannot afterwards change his mind. Darby v. Ouseley, 1 H. & N. 1; 25 L. J., Ex. 227.

Arguments of counsel.] When points of law arise incidentally, all the counsel on both sides are usually heard by the court; and the leading counsel of the party making the objection, or submitting the point, alone replies. But, on the claim of a right to begin, Ld. Denman ruled that one counsel only was to be heard on each side. Rawlins v. Desborough, 2 M. & Rob. 70. This rule, however, is not always adhered to. See Bastard v. Smith, Id. 132. If the defendant's counsel go for a nonsuit or judgment for the defendant on a point of law, and the plaintiff's counsel answer it, the defendant's counsel has a right to reply upon the law only. Arden v. Tucker, 1 M. & Rob. 192.

The objection of a witness to a question which he considers himself not bound to answer is not a point on which counsel in the cause are heard.

R. v. Adey, 1 M. & Rob. 94, ante, p. 173. Nor is his obligation to produce documents, ante, p. 156.

Where the party conducts his case, addresses the jury and examines witnesses in person, it is questionable whether counsel can be heard for him on a point of law. Shuttleworth v. Nicholson, 1 M. & Rob. 254; Moscatti v. Lawson, lb. 454. In the latter case, Alderson, B., said that, though there were many precedents, it was a very objectionable practice. It has been decided that a party, who conducts his own case, cannot on that account be excluded from giving evidence as a witness. Cobbett v. Hudson, 1 E. & B. 11.

See Rules, 1883, 0. xxv. r. 2, post, p. 290, as to points of law.

Separate defence of co-defendants.] In an action for the price of goods, in which the defendants appeared and pleaded non assumpsit by separate attorneys and counsel, but relied on the same defence (viz. payment), it was ruled by Gibbs, C. J., that the senior counsel could alone address the jury, and the witnesses were to be examined by the counsel successively, in the same manner as if the defence were joint and not separate: "It cannot be left in the power of defendants, whose interests are the same, to make twenty cases out of one." Chippendale v. Masson, 4 Camp. 174. And, in ejectment, where the defendants defended in the same right, but by different attorneys and counsel, Ld. Tenterden ruled that only one counsel could address the jury. Doe d. Hogg v. Tindal, M. & M. 314. So in Mason v. Ditchbourne, 1 M. & Rob. 462, n., in debt on bond, plea non est factum and fraud, Ld. Abinger refused to allow two counsel to address the jury, for there could not be a verdict for one, and against the other, defendant."

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But, in an action ex delicto, where defendants have pleaded and appeared by separate attorneys and counsel, separate cross-examinations and addresses have been permitted by Abbott, C. J.; King v. Williamson, 3 Stark. 162; and by Tindal, C. J., in Massey v. Goyder, 4 C. & P. 162, and in Southey v. Tuff, C. P. sittings after T. T. 1834, MS.; and even in assumpsit, under similar circumstances, the same course was allowed and was approved by the court in banc in Ridgway v. Philip, 1 C. M. & R. 415; in which case, however, it appears, by another report, that one of the defences was misjoinder of defendants as partners. S. C., 3 Dowl. 154.

Where the defendants appear by the same solicitor and plead a joint defence, the practice is to hear one counsel only. So held in trover, plea, not guilty. Perring v. Tucker, M. & M. 392. And in debt, where the defence under plea of never indebted was that all the defendants were not parties to the contract, the court would not hear more than one counsel. Nicholson v. Brooke, 2 Exch. 213. It seems, however, to be a matter of discretion with the judge at Nisi Prius. S. C. A defendant does not, by appearing at the trial in person, acquire any right to address the jury, which he would not have if he appeared by counsel. Perring v. Tucker, supra. In King v. Williamson, supra, only one counsel was allowed to examine those witnesses who had been subpoenaed by both defendants. In cases where the defendants have no right to a separate address or examination, yet the counsel of any will be heard on a legal objection; as that there is no evidence against one of them; per Tindal, C. J., in Poole v. Sidden and another, C. P. sittings after M. T. 1832, MS. (on the general issue to indeb. assumpsit).

When two were made defendants in an issue out of chancery whose interests were at variance with each other, the counsel of each was allowed

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