and others on the defendant, it is usual for the plaintiff to begin, and to prove those which are essential to his case; Jackson v. Hesketh, 2 Stark. 521; and the defendant then does the same, and afterwards the plaintiff is entitled to go into evidence to controvert the defendant's affirmative proofs. The defendant's counsel is entitled to reply upon such evidence, in support of his own affirmative, and the plaintiff's counsel to a general reply. 1 Stark. Ev. 342. Where a party tenders evidence primâ facie admissible, the other party will not be allowed to interpose with evidence for the purpose of excluding it; but it should be received, and expunged if afterwards shown not to be properly receivable. Jones v. Fort, 1 M. and M. 196.

It was laid down as a general rule by Lord Ellenborough, that when by pleading, or by means of notice, the defence is known, the counsel for the plaintiff is bound to open the whole case in chief, and cannot proceed in parts, unless some specific fact be adduced by the defendant, to which the plaintiff can give an answer, but that he cannot go into general evidence in reply. Rees v. Smith, 2 Stark. 31. But the practice is now altered, and the plaintiff's counsel is at liberty, either at once to enter into the whole of his case, or to make out a primâ facie case only, and to reserve his answer to the defendant's case for the reply, but he cannot answer part of the defendant's case in his opening and part in the reply. Browne v. Murray, R. and M. 254. Sylvester v. Hall, Id. 255 (n). 1 Stark. Ev. 383.

Where the general issue is not pleaded, but issue is joined on a collateral fact, as the execution of a release in assumpsit, or debt, or a right of way in trespass, the proof of which rests on the defendant, his counsel begin, after the pleadings are opened, and have the general reply. Tidd, 908. The onus of proving damages does not give the plaintiff's counsel a right to begin. Bedell v. Russell, R. and M. 293; but see Lacon v. Higgins, 3 Stark. 178," post. Roby v. Howard, 2 Stark. 556. And in trespass, where the general issue is pleaded as to the coming with force and arms, and whatever else is against the peace, and a special plea as to the rest, the issue upon which lies on the defendant, the counsel for the defendant is entitled to begin. Jackson v. Hesketh, 2 Stark. 518. The rule as established in practice is, that when the general issue is not pleaded, and the affirmative of the issue lies on the defendant, he is to begin. Per Lord Tenterden, Cotton v. James, 1 M. and M. 275. So in an action for a libel, where a justification without the general issue is pleaded, the defendant is entitled to begin. Cooper v. Wakley, 1 M. and M. 248. In ejectment by a person claiming under a will against a person claiming under a codicil, if the defendant will admit the will, he is entitled to begin and to have the general reply. Doe v. Corbett, 3 Campb. 368; see also Peake Ev. 6 (n). So where in an ejectment by

an heir at law against a devisee, the lessor of the plaintiff proved his pedigree and stopped, and the defendant set up a new case, which the lessor of the plaintiff answered by evidence, it was held that the defendant was entitled to the general reply. Goodtitle v. Braham, 4 T. R. 497. Where in replevin the defendant avows for rent, and the plaintiff pleads in bar an agreement to set off another sum against the rent, and issue is taken on that plea, the plaintiff is entitled to begin, the affirmative being on him. Curtis v. Wheeler, 4 C. and P. 196. Williams v. Thomas, Id. 234. Where the defendant brings evidence to impeach the plaintiff's case, and also sets up an entire new case, which again the plaintiff controverts by evidence, the defendant's reply in such case is confined to the new case set up by him, for upon that relied upon by the plaintiff, his counsel has already commented in the opening of the defendant's case, and the plaintiff is entitled to the general reply. 1 Stark. Ev. 384. Meagoe v. Simmons, 3 C. and P. 76.o

W

Where the defendant proves a payment to the plaintiff, by showing the particulars of demand delivered under a judge's order, in which the plaintiff has credited the defendant, this is the evidence of the defendant, and entitles the plaintiff to a reply. Rymer v. Cook, 1 M. and M. 86 (n).

Where the counsel for the defendant opens facts to the jury, which he calls no witnesses to prove, it is in the discretion of the judge to permit the plaintiff's counsel to reply. Crerar v. Sodo, 1 M. and M. 85.

Upon an issue on a plea in abatement, which lies upon the defendant, the practice has not been uniform. It has been ruled by Abbott, C. J., that as the plaintiff has to prove the amount of the damages (but see ante, p. 132), his counsel is, if he elect to do so, entitled to begin, but the defendant's counsel, admitting the amount, was allowed to begin; Lacon v. Higgins, 3 Stark. 178; see also Roby v. Howard, 2 Stark. 555," Stansfield v. Levy, 3 Stark. 8; but in another case Bayley, J., directed that the defendant should begin, and that the question of damages should, if necessary, be determined afterwards. Anon. 2 Stark. Ev. 2.

So in an action upon a bill of exchange, where the non-joinder of a joint contractor was pleaded in abatement, Lord Tenterden permitted the defendant to begin, and said that the most convenient rule was, that wherever 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 computation, then if the affirmative is on the defendant, he is entitled to begin. Fowler v. Coster, 1 M. and M. 241.

a

Where several defendants in the same interest defend separately,

19 Eng. Com. Law Reps. 340. * 19 Id. 361.7 14 Id. 212. 14 Id. 176.

* 3 Id. 472. b 14 Id. 146.

it was ruled by Gibbs, C. J., that the senior counsel can alone address the jury, and the witnesses are to be examined by the counsel successively, in the same manner as if the defence were joint and not separate. Chippendale v. Masson, 4 Campb. 174. And in ejectment where the defendants defended in the same right, but by different attornies and counsel, Lord Tenterden ruled that only one counsel could address the jury. Doe v. Tindal, 1 M. and M. 314. 3 C. and P. 565, S. C.; and see Perring v. Tucker, Id. 392. But in some cases counsel for each party have been allowed to crossexamine, and to address the jury. King v. Williamson, 3 Stark. 162; and see Massey v. Goyder, 4 C. and P. 162. The leading counsel has a right, in his discretion, to interpose, and to take the examination of a witness out of the hands of his junior, but after one counsel has brought his examination to a close, a question cannot regularly be put to the witness by another counsel on the same side. Doe v. Roe, 2 Campb. 280.

Demurrer to Evidence.

If a party wishes to withdraw from the jury the application of the law to the fact, and all consideration of what the law is upon the fact, he then demurs in law upon the evidence, and the precise operation of that demurrer is, to take from the jury and to refer to the judge the application of the law to the fact. Per Eyre, C. J., Gibson v. Hunter, 2 H. Bl. 206. On a demurrer to circumstantial evidence, the party offering the evidence is not obliged to join in demurrer, unless the party demurring will distinctly admit upon the record every fact, and every conclusion which the evidence offered conduces to prove. Id. 187. But where the evidence is certain, as where it consists of matter of record, or other matter in writing, the party offering the evidence may be compelled to join in demurrer or waive the evidence. Id. 206. The whole proceeding of a demurrer to evidence is under the control of the judge, before whom the trial is had, who may overrule the demurrer, upon which the party demurring may tender a bill of exceptions. Id. 208. Where a demurrer to evidence is admitted, it is usual for the court, or judge, to give orders to the associate to take a note of the testimony, which is signed by the counsel on both sides, and the demurrer is affixed to the postea. Tidd, 916. B. N. P. 313. The damages may be assessed either by the principal jury, conditionally, before they are discharged, or by another jury upon a writ of inquiry after the demurrer is determined, and it is said to be the most usual course, when there is a demurrer to evidence, to discharge the jury without further inquiry. Ibid.

Bill of Exceptions.

A bill of exception lies upon some point of law, either in admitting or denying evidence, or a challenge, or some matter of law arising upon fact not denied, in which either party is overruled by the court. B. N. P. 316. If such bill be tendered, and the exceptions in it are truly stated, then the judge (by stat. Wesm. 2, 13 Ed. 1 c. 31) ought to set his seal, in testimony that such exceptions were taken at the trial, but if the bills contain matters false, or untruly stated, or matters in which the party was not overruled, he is not obliged to affix his seal. B. N. P. 316. The bill of exceptions must be tendered at the trial, and the substance of it reduced into writing at the time. Ibid. Tidd, 912. As a bill of exceptions can only be argued on error, where a writ of error will not lie there can be no bill of exceptions. lbid; but see 2 Inst. 427.

136

EVIDENCE IN PARTICULAR ACTIONS.

ASSUMPSIT ON SALE OF REAL PROPERTY.

Vendor against Vendee.

In an action of assumpsit by the vendor of real property on the purchaser's default in completing the contract, the plaintiff must prove the contract; the performance, by himself, of all conditions precedent, and the defendant's default.

Proof of the contract.] It will be necessary to prove a contract in writing, for by the statute of frauds, 29 Car. II. c. 3. s. 4, no action shall be brought whereby to charge any person upon any contract, or sale, of lands, tenements, or hereditaments; or any interest in or concerning them, unless the agreement upon which such actions shall be brought, or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or some other person thereunto, by him, lawfully authorised.

The note, or writing, must specify the terms, for otherwise all the danger of perjury, which the statute intended to guard against, would be let in. Sugd. V. and P. 76. Thus where an auctioneer's receipt for the deposit was set up as an agreement, it was rejected, because it did not state the price to be paid for the estate, Blagden v. Bradbear, 12 Ves. 466, but had the receipt referred to the conditions of sale, so as to have entitled the court to look at them for the terms, it might have been enforced as an agreement. Ibid. So if a letter, properly signed, does not contain the whole agreement, yet if it actually refer to a writing that does, it will be sufficient, though the latter writing is not signed, and parol evidence is admissible to show the identity of the writing referred to. Clinan v. Cooke, 1 Sch. and Lef. 22. Allen v. Bennet, 3 Taunt. 169; see also Gordon v. Trevelyan, 1 Price, 64, Cooper v. Smith, 15 East, 103, Sugd. V. and P. 76, Richards v. Porter, 6 B. and C. 437, Smith v. Surman, 9 B. and C. 561.5 The agreement cannot be enforced unless both the contracting parties are named in it. Charlewood v. Duke of Bedford, 1 Atk. 497. Wheeler v. Collier, 1 M. and M. 123. A bill to amend the law with regard to the proof of contracts under the statute of frauds has been introduced this session into the House of Commons, by Sir E. B. Sugden, and, if