ور

Lindsay, 1 East, 460. Hawkins v. Warre, 3 B. and C. 696. A mere acknowledgment, not of the payment of money, but of a sum due and owing, (as an I. O. U.) requires no stamp. Fisher v. Leslie, 1 Esp. 426. Israel v. Israel, 1 Campb. 499. Childers v. Bulnois, Dow. and Ry. N. P. C. 8; but see Guy v. Harris, Chitty on Bills, 428, 5th ed. contra. See also Green v. Davies, 4 B. and C. 235. So an instrument in these terms, "Mr. T. has left in my hands 2001.; Tomkins v. Ashby, 6 B. and C. 541; or in these, I have in my hands 3 bills which amount to 120l. 10s. 6d. which I have to get discounted, or return on demand." Mullett v. Huchison, 7 B. and C. 639. 1 M. and R. 522, S. C. So the acknowledgment of the correctness of an account containing a statement of sums advanced, and disbursements made, has been held to require no stamp. Wellard v. Moss. 1 Bingh. 134. A receipt is not inadmissible as such, because it notices the terms and consideration upon which the money was paid. Watkins v. Hewlitt, 1 B. and B. 1. So although it contain subsequent matter of agreement, and has no agreement stamp; Grey v. Smith, 1 Campb. 387; unless the agreement control or qualify what goes before, when the paper will be inadmissible without an agreement stamp. Ibid. See Corder v. Drakeford, 3 Taunt. 382. Clayton v. Burtenshaw, 5 B. and C. 85. Where the indorsements of receipts on a bond have left no blank space for receipts of subsequent payments to be written on the bond, such receipts written on an unstamped piece of paper annexed to the bond are within the exemption of 55 Geo. III. c. 184, sched. p. 1, and admissible. Orme v. Young, 4 Campb. 336. An unstamped receipt may be used by a witness to refresh his memory. Rambert v. Cohen, 4 Esp. 213. Maugham v. Hubbard, 8 B. and C. 14.

COURSE OF EVIDENCE.

Before the jury are sworn, the counsel for the plaintiff has a right, on the cause being called on, to have a witness called on his subpoena. Hopper v. Smith, 1 M. and M. 115.

When the jury are sworn, the junior counsel for the plaintiff opens the pleadings, after which, if the proof of the issue rest on the plaintiff, as where the general issue is pleaded, the senior, or leading counsel, states the case to the jury, and after calling and examining witnesses in support of it, the counsel for the defendant are heard, and if they call any witnesses, the plaintiff's counsel have the general reply. Tidd, 908. The production by the defendant of a rule to pay money into court, is not, according to the practice of the Common Pleas, such evidence as to give the plaintiff's counsel the right to reply. 2 Taunt. 267. Where there are several issues, some of which are incumbent on the plaintiff, 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; 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 a 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 prima 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 prac tice 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 prima 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 estab lished 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.

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 nonjoinder 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.

Where several defendants in the same interest defend

separately, 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 cross-examine, 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 the examination to a close, a question cannot regularly be put to the witness by another counsel on the same side. Doe v. Roe, 2 Camph. 280.

Demurrer to Evidence.

If a party wishes to withdraw from the jury the applica tion 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.

H

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. N. B. P. 316. If such bill be tendered, and the exceptions in it are truly stated, then the judge (by stat. Westm. 2, 13 Ed. I. c. 31) ought to set his seal, in testimony that such exceptions were taken at the trial, but if the bill 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. Ibid; but see 2 Inst. 427.