Judge of Probate v. Stone

Sargent, J. In Bump v. 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 imposed upon the plaintiff' the burden of making out his whole case before the matter 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 practice 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 v. Jenness, 21 N. H. 232 ; Ayer v. Austin; 6 Pick. 225; Belknap v. 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 that this is the case, though the burden of proof may shift in the course of the trial; that is, 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 v. Gould, 5 Greenl. 204, is to the same effect. Whenever the general issue is pleaded, with a special plea of justification, or the like, their the burden of proof shifts in the course of the trial. The plaintiff must first prove his case, so as to entitle him to recover on the general issue. If he did not do this, the defendant would be entitled to a verdict on that issue, and he need not then trouble himself to prove his justification. But the 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 proved his justification. The burden of proof then shifts and the defendant has the affirmative of the second issue; still the plaintiff must open and close, because the primary burden of proof is on him; Brooks v. Barrett, 7 Pick. 100; Comstock v. Huldyme, 8 Conn. 261; in which Williams, J., says, “the plaintiff’ begins, and has the right of reply in all cases where the defendant’s pleadings or any part of them deny 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 v. Kennett, 22 N. H. 151, the general issue was pleaded, and the plaintiff opened and closed. The same was true in Buzzell v. Snell, 25 N. H. 478, though there the defendant on trial offered to make certain admissions, not made in his — 603 — pleadings, 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 general issue throwing the primary burden of proof on the plaintiff, he had also the close. In the head note of this case, it is said that if the affirmative of any issue joined upon the pleadings is upon the plaintiff, he has the right to open and close; but this is not authority any farther than it is founded upon the facts in the case; and the case settles only that when the defendant’s pleadings, or any part of them, deny the whole or any part of the plaintiff’s pleadings, so as to leave any affirmative allegation on his side first to be proved, that he shall open and close. ¥e find a similar expression to the above head note in 1 Greenl. Ev., sec. 74: “ If the record contains several issues, and the plaintiff holds the affirmative of any one of them, he is entitled to begin ;” citing a case of slander for charging the plaintiff with the commission of a crime, when the defendant pleaded the general issue, with a justification. This statement, like the head note in Buzzell v. Snell, has reference to the issues joined on the defendant’s pleadings to the plaintiff’s declaration, and so far they are authority, and no farther. The head note in Bills v. Vose, 27 N. H. 212, has a similar statement; but an examination of the case shows that all that was settled was, that however frequently the burden of proof had been changed by the pleadings, still, if the affirmative of the issues finally joined rested on the plaintiff, he should open and close. The case was replevin for animals; the defendant avowed the taking, and justified on the ground that the animals were taken damage feasant. The plaintiff, by his plea, admitted all this, but replied a tender of damages and costs. The defendant denied the tender, and on that, issue was joined. The defendant, also, alleged that there was a pound breach and a retaking of the cattle, and that additional costs were incurred which were not included in the sum tendered. The plaintiff rejoined that all lawful additional fees were included in said tender. This was denied by the defendant, and issue was joined; thus leaving the affirmative of the only two issues in the case upon the plaintiff. Chesley v. Chesley, 37 N. H. 229, was where there were no proper pleadings in the case. Each party had made a statement before a commissioner, and it was found that the substance of the defendant’s statement was a general denial of the plaintiff’s ease, 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 facts 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 what 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 defendant’s pleading to the — 604 — plaintiff’s declaration ; and if any thing was in that way left for the plaintiff first to prove, he was entitled, also, to close. Seavey v. Dearborn, 19 N. H. 351, was where the defendant justified the acts charged, in his plea, and did not plead the general issue. He thereby admitted all the plaintiff’s case, and alleged new matter by way of justification. To this plea there was a general replication, which threw the primary burden of proof on the defendant, and he was properly allowed to close. "We find no case in this State where the precise question raised in this case has ever been decided. The question has generally been raised, whether the defendant, by his pleadings, denies the whole or any part of the plaintiff’s declaration. If he does, the plaintiff is entitled to the close. If he does not, and the plaintiff’ denies the whole of the defendant’s plea, then the affirmative of the issue is on the defendant, and he must begin and close, as in Seavey v. Dearborn. Bills v. Vose is the only exceptional case, and there the burden of proof shifted, but was finally left on the plaintiff on both issues, and he began and closed. In the case before us the plaintiff states his case in his declaration in such a way that if his statement be admitted, he is entitled to recover. The defendant, by his plea, admits all the plaintiff’s ease, but alleges new matter, and says he has a deed of assignment from Winsor Cooper in his life time, conveying all said Winsor’s interest in the estate in controversy. He does not deny any part of the plaintiff's pleading (his declaration), but when he admits that, and alleges the new matter, the burden of proof changes, and it rests on the defendant to prove his new matter (his deed); and when the burden of proof shifted, the right to begin and close, or rather the necessity of beginning and the accompanying right of closing, changed with it, as in Seavey v. Dearborn. Now the burden of proof having shifted, and the accompanying right of closing, and they now being with the defendant, he will retain the right of closing until he is relieved from the burden of first going forward and proving his case. Now, in order to change the burden of proof, and the right to close, the plaintiff must admit the defendant’s pleadings, and.allege new matter; in other words, his replication must not deny the whole or any part of the defendant’s plea; if he does so, if he leaves any thing which the defendant is obliged to prove in the first instance, he neither relieves him from the burden of proof, or gains the right to close. In this case the plaintiff does no such thing, but he denies the defendant’s deed first, which is the general issue to the defendant’s plea, and then he pleads in avoidance, that the deed, if there was one, was obtained by the covin and fraud of the defendant. By this plea the plaintiff no more relieves the defendant of the burden of proof than a defendant does the plaintiff in a case where he first pleads the general issue to the plaintiff’s declaration, and with it new matter in justification or avoidance. In either case the plea of justification, &c., is not reached until after the general issue is met by affirmative proof. In the case before us, the plea of covin and fraud, the affirmative of which was upon the plaintiff) would never be reached until the — 605 — defendant had proved his deed, because the plaintiff denied its execution. If the plaintiff desired the right to close, he should have omitted his plea of non estfaciumj and only pleaded the covin and fraud; then he would have admitted the defendant’s case, and would then have had the primary burden of proof on himself, and the right to close. Woods, J., has stated the rule correctly in Seavey v. Dearborn, supra; “ The general rule that the party having the affirmative of the issue, or the party on whom the burden of pi’oof in the first instance devolves, has the right to open and close at the trial, is the one always referred to on questions of this kind;” and he also lays it down that the party having the primary burden of proof is entitled to its benefit, which is the right to close. In appeals from the probate court for proving a will, it matters not which party is the appellant. The party who affirms that a will was made has the primary burden of proof, and the accompanying right to close. Buckminster v. Perry, 4 Mass. 593; Brooks v. Barrett, 7 Pick. 94. “The right of opening or closing the evidence in a case does not belong either to the plaintiff or the defendant as such, but depends entirely upon wdiich party takes the affirmative of the issue; and a right to rest on a primct facie showing is mutual and belongs as well to a defendant as a plaintiff.” Gass v. Turner, 21 Vt. 440. The English authorities are generally in accordance with this doctrine, but there are some nisi prius cases which are contradictory, and are of no great weight, since they were most of them made when it was considered a matter entirely within the discretion of the court to allow one party or the other to open and close, as was thought most convenient in each case; and no exception to the ruling was allowed. These authorities are, however, considered of little weight in their own country now. Denman, C.J., in Mercer v. Whall, 5 Ad. & Ellis (N. S.) 447, 465, speaking of this rule, says, “We do not deem it necessary to discuss the numerous cases recently reported from nisi p>rius, for they only prove the unsettled state of judicial opinion on that subject.” And in England, it has been recently held that an erroneous ruling with respect to the right to begin and close is ground for a new trial. Doe, ex dem. Bather v. Brayne, 5 M. G. & Sc. 655. In this case I find in the note on pages 658, 659, a manuscript case cited, which is in point, Ward v. -, before Burrough, J., at the Dorchester Assizes, July, 1823. The case is thus stated: “In replevin, where the defendant avowed under a lease from the plaintiff, to which the plaintiff pleaded non est factum, and also other pleas, the proof of wifich lay on the plaintiff the defendant was held to be entitled to begin, inasmuch as the other issues -were immaterial until the existence of the lease was established.” So in the case before us, the plea that the deed was obtained by covin and fraud is entirely immaterial, and does not arise, and can not, until the defendant has proved the existence of his deed. And until he did that, there was nothing else to be done, and without that, the plaintiff was entitled to a verdict without regard to the other issue. — 606 — I find a rule laid down in Huckman v. Fernie, 2 Jurist (Exch.) 444, that to determine which party is to begin (and of course, which shall close), is to consider which would get the verdict if no evidence were given on either side, and the right to begin is with the one who would in that way lose his case. The same rule is laid down in Veiths v. Hogge, 8 Clarke (Iowa) 163. However often the burden of proof might change in the course of the trial, this would seem a sure rule by which to ascertain on whom rested the primary burden of proof; and wherever that burden rests, there the accompanying right to close will follow. Robinson v. Hitchcock, 8 Met. 64. I am aware that in England certain cases or classes of cases are excepted from the operation of this general rule, or rather they have as a special rule, that “in actions for libel, slander, and injuries to the person, the plaintiff shall begin, although the affirmative issue is on the defendant.” The reasons which led to the adoption of this rule in England are stated by Denman, C. J., in Mercer v. Whall, before cited, though the rule itself was announced long before that by Tindall, C. J., in Carter v. Jones, 6 Car. & P. 64. No such rule in relation to these classes of cases has ever been made, to our knowledge, in this State, nor has any such practice prevailed. The defendant opened his case by his evidence. He was obliged to do so, or lose his case. He should also have been allowed the close. But will the verdict be set aside for this error in the ruling? That question has not been settled in this State. In Belknap v. Wendell, supra, it was said that, as the ruling at the trial was right, the question whether the privilege of opening and closing was a right, or whether it was a matter within the discretion of the court, did not arise. In Connecticut it has been held that it was a matter entirely within the discretion of the court, and that an error in this matter is no ground of exception or for a new trial. Comstock v. Haldyme, 8 Conn. 261; Scott v. Hull, 8 Conn. 303. So was the early holding in England, as we have seen. But in Massachusetts it has been held that the opening and closing were a matter of right, and that a verdict will be set aside for an error in this particular; Davis v. Mason, 4 Pick. 136 ; Sawyer v. Merrill, 6 Pick. 480; and such seems now to be the better opinion in England. And although the question has not been solemnly adjudicated in this State, yet in all our cases the matter of opening and closing is spoken of as the rigjut of one party or the other ; and we think that a holding that the whole matter was entirely within the discretion of the presiding justice would strike the members of the bar of the State generally with some surprise, as being contrary to their notions of the law on that subject. It is often a matter of as much consequence to a party to have the closing argument as it is to have a question of law ruled in his favor; and if the ruling is wrong in either case, we can not say that the party has not suffered in consequence of such error. "We think that for this cause the verdict must be set aside. If, upon another trial, the plaintiff should withdraw his plea of non est factum, and thus secure to himself the right to close, the statements of "Wood and others bearing upon the state of mind of "Winsor Cooper when he made the assignment, might become imma — 607 — terial, as also might the testimony to contradict Frost. But if the pleadings should remain as they are, these questions might again arise and become material. We think the evidence of Wood was properly admitted, on the ground upon which it was offered, if accompanied by proper instructions that it was to be considered only as showing the state and condition of Winsor Cooper’s mind, and not as evidence that the statements he made were true, or that Stone ever made any such statements to him as he related. These statements of Winsor Cooper are not to be received as the admissions of Stoue, or evidence of any thing whatever except of the state of Winsor Cooper’s mind at the time he made them. It does not appear distinctly whether the testimony offered to contradict Frost wras competent or not, because the case does not show what Frost’s statements were. It is said that he stated what took place at the time of the assignment, &c., “ and as to the said Winsor Cooper’s condition and mental capacity at the time.” Now if Frost stated that Cooper then appeared rational, and regular, and competent, &c., if he gave the jury to understand by what he said that he supposed said Cooper to be every way competent to make a valid deed, no matter in -what particular words it was expressed, then the testimony admitted was clearly competent to contradict him. So far as we can judge from the case, we presume this evidence was properly admitted. It appears from the case that the court, after the closing arguments of counsel, and after the charge and instructions of the court to the jury, ruled out all the evidence that had been admitted subject to the defendant’^ exception of Winsor Cooper’s statements, such as the testimony of Wood and others, and also the evidence introduced to contradict Frost. There must have been something very extraordinary in the circumstauces of the case to have warranted this proceeding on the part of the court, unless it Avas assented to by both parties, which was not the case here. What these extraordinary circumstances were Ave are not informed, but Are must presume that they Avere sufficient to Avarrant the course pursued, as Ave think it must be a matter within the discretion of the court to rule out evidence, when it is found to have been improperly admitted; but ordinarily this should be done before the closing arguments of counsel or the charge of the court. There must be extraordinary circumstances in the case to warrant a different course. We think the instructions given were correct, and that those asked for were properly refused. If the jury found that Stone made the representation alleged in regard to his knowledge concerning the will, then the statement Avas material, and the only question for the jury was as to its being false and fraudulent. The real question was, Avhether Stone practiced fraud upon said Cooper, by which he Avas induced to execute the assignment. But the instructions Avere sufficiently favorable to the defendant on that point. Either Cooper or his administrator might, on the discovery of the fraud, rescind the contract, but it must be rescinded immediately upon such discovery. If Cooper did not discover it in his lifetime, then his administrator, irpon such discovery, might rescind or ratify; he could not do both; — 608 — and, if he elected to rescind, he could only do so by placing the defendant in the same position in which he was before, as near as might be. But the defendant can not complain, if he obtained the deed by fraud and then kept said Cooper in ignorance of it till he had expended all the money he received, and then died, and an amount of money belonging to the estate of said Cooper had come into his hands larger than the amount he had so paid, that said administrator should insist that the defendant should be paid the sum thus advanced from the funds then in his hands. The demand was well enough. It was no excuse to the defendant for not paying what was honestly due, that a larger sum was demanded. The only question that arises upon the form of the demand, is one of fact, which the jury must have settled in finding their verdict, and must pass upon again if the cause is again tried. If the plaintiffj when he made the demand and brought the suit, intended to make the defendant pay over the whole money in his hands, without either paying him or allowing him to deduct the sum advanced to Cooper, then there was no rescission of the contract, and the plaintiff can not maintain this suit. But the jury must have found, under proper instructions from the court, which are presumed to have been given, that the plaintiff' intended, by what he did and said, to rescind the contract, and that the defendant so understood it; and that this election to rescind was made seasonably — as soon as the fraud was discovered; and if another jury should find these facts all in the same way, then the form of the demand was not material, and was, we think, sufficient. But for the reason before mentioned, the verdict^is set aside, and there must be A new trial.