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, ante, p. 72. 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 In the now superseded action of ejectment the defendant might in some cases, by admitting a title in the plaintiff, entitle himself to begin, and the same principles will apply to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. 265.

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, O. xxxvi., r. 36, ante, p. 256, 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. 256. Unless the defendant give evidence, the plaintiff is not entitled to reply, there being no new facts upon which his counsel can comment. Where 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. 256), 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 goes for a nonsuit on a point of

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law, and the plaintiff's counsel answers 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. 164. Nor is his obligation to produce documents, ante, p. 147.

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, Ib. 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, Õ. xxv., r. 2, post, p. 273, 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."

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 to address the jury and prove his case separately and in succession; the wit

nesses of each might be cross-examined by the co-defendant's as well as the plaintiff's counsel; and the plaintiff had the general reply. Phillips v. Willetts, 2 M. & Rob. 319, and Wynne v. Wynne, cited Id. 321. The order in which co-defendants shall examine and address seems to be in the judge's discretion. Fletcher v. Crosbie, Id. 417.

Where it was ordered, on an issue out of chancery, that a third party "should be at liberty to attend the trial," the counsel for such party might cross-examine and suggest points of law, but could not call witnesses or address the jury. Wright v. Wright, 7 Bing. 458.

As to practice where the plaintiff has joined defendants with the view of obtaining relief against them in the alternative, see Child v. Stenning, 7 Ch. D. 413.

Set-off and counter-claim.] Set-off and counter-claim are now in the same position as if they formed a statement of claim by the defendant against the plaintiff; and under Rules, 1883, O. xxi., r. 16, although the action is stayed, discontinued, or dismissed, the counter-claim may be proceeded with ; and by r. 17, post, p. 273, judgment may be given for the defendant for any balance found to be due to him.

Third Party.] Where the defendant claims to be entitled to contribution or indemnity over against any party not a party to the action, the defendant may bring him in under Rules, 1883, O. xvi., rr. 48-53. The directions for trial given by the Court or judge under r. 52, will regulate the manner in which the questions are to be tried, and under r. 53 the third party may have leave to defend the action. Under r. 54, post, p. 276, the Court or a judge has power to decide all questions of costs. R. 55 places a co-defendant against whom a defendant seeks contribution or indemnity in the same position as a third party. Under this rule contribution may be ordered between co-defendants. Sawyer v. Sawyer, W. N. 1883, p. 212, MS. Chitty, J.

Exception for misdirection.] The J. Act, 1875, s. 22, enacts that nothing in the J. Act, 1873, "nor in any rule or order made under the powers thereof or of this Act shall take away or prejudice the right of any party to any action to have the issues for trial by jury submitted and left by the judge to the jury before whom the same shall come for trial with a proper and complete direction to the jury upon the law, and as to the evidence applicable to such issues. Provided also, that the said right may be enforced either by motion in the High Court of Justice, or by motion in the Court of Appeal, founded upon an exception entered upon or annexed to the record." The Rules, 1883, O. lviii. r. 1, direct that all appeals to the Court of Appeal shall be by way of rehearing, and shall be brought by notice of motion in a summary way. As to the duty of the judge in directing the jury, Edmonds v. Prudential Assur. Co., 2 Ap. Ca. 487, 507, per Ld. Blackburn. The judge is bound to direct a verdict for the defendant, unless there is some evidence on which the jury may reasonably act; a mere scintilla of evidence is not sufficient. Ryder v. Wombwell, L. R., 4 Ex. 32, 39, Ex. Ch.; Giblin v. McMullen, L. R., 2 P. C. 317, 335 ; Steward v. Young, L. R., 5 C. P. 122, 128; Daniel v. Metropolitan Ry. Co., L. R., 5 H. L. 45 ; Jackson v. Id., 3 Ap. Ca. 193, D. P. See further Slattery v. Dublin, Wicklow, &c. Ry. Co., Id. 1155, D. P.; Davey v. L. & S. W. Ry. Co., 11 Q. B. D. 213; 12 Id. 70, C. A. The rule is, that if the evidence be such that the jury could conjecture only, not judge, it ought not to go to the jury, and the onus lies on the party offering the evidence; and if he offers only evidence consistent with either supposition of fact, he is not entitled to have it put to the jury; per Ld. Tenterden, C. J., referred to by Cresswell,

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J., in Avery v. Bowden, 6 E. & B. 953, 974; 26 L. J., Q. B. 3, and cited by Willes, J., in Phillipson v. Hayter, L. R., 6 C. P. 42, 43.

Discontinuance.] By Rules, 1883, O. xxvi., r. 1, "save as in this rule otherwise provided, it shall not be competent for the plaintiff to withdraw the record or discontinue the action without leave of the court or a judge, but the court or a judge may, before, or at, or after the hearing or trial upon such terms as to costs, and as to any other action, and otherwise as may be Just, order the action to be discontinued, or any part of the alleged cause of complaint to be struck out. The court or a judge may, in like manner and with the like discretion as to terms, upon the application of a defendant, order the whole or any part of his alleged grounds of defence or counter-claim, to be withdrawn or struck out, but it shall not be competent to a defendant to withdraw his defence, or any part thereof, without such leave." This rule seems to deprive the plaintiff of his right to be nonsuited. It may be observed that it does not in terms prohibit a defendant from withdrawing his counter-claim. By r. 2 a cause may be withdrawn by either party "upon producing to the proper officer a consent in writing signed by the parties."

Effect of opposite party not appearing at trial.] By Rules, 1883, O. xxxvi., r. 31, "if, when an action is called on for trial, the plaintiff appears, and the defendant does not appear, the plaintiff may prove his claim so far as the burden of proof lies upon him." If the burden of proof is on the defendant, the plaintiff need not, it seems, in this case have the jury sworn. v. Eve, infra.

See Lane

By r. 32, "if, when a trial is called on, the defendant appears, and the plaintiff does not appear, the defendant, if he has no counter-claim, shall be entitled to judgment dismissing the action; but if he has a counter-claim, then he may prove such counter-claim so far as the burden of proof lies upon him." In the former case the defendant need not have the jury sworn. Lane v. Eve, W. N., 1876, p. 86, per Denman, J. Where the plaintiff declines to proceed at the trial, judgment will be given under this rule dismissing the action. Robinson v. Chadwick, 7 Ch. D. 878.

By r. 33, "any verdict or judgment obtained where one party does not appear at the trial may be set aside, by the court or a judge, upon such terms as may seem fit, upon an application made within six days after the trial. Such application may be made either at the assizes or in Middlesex." Where the default arises from inadvertence, the application will be granted on payment of the costs of the day, including all costs that have been wasted, and the costs of the application. Burgoine v. Taylor, 9 Ch. D. 1, C. A.

Where one party appears, but the opposite party does not appear, the former may proceed and obtain judgment without proving service of notice of trial. James v. Crow, 7 Ch. D. 410, Fry, J., following Ex parte Lows, Id. 160, C. A., and overruling his decisions in Cockle v. Joyce, Id. 56, and Cockshott v. L. General Cub Co., 47 L. J., Ch. 126.

Amendment at Nisi Prius.] By Rules, 1883, O. xxviii., r. 1, "The court or a judge may, at any stage of the proceedings, allow either party to alter or amend his indorsement or pleadings, in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties." By r. 6, application for leave to amend may be made " to the judge at the trial of the action, and such amendment may be allowed upon such terms as to costs or otherwise as may be just." By r. 12, "the court or judge may