MURRAY v. MASON, 17 F. Cas. 1060

CRANCH, Chief Judge. The plea of not guilty having been withdrawn, the jury was sworn to try the issue upon the plea of justification only. The.counsel for the defendant contend that as they hold the affirmative of the issue they have a right to open and close the argument before the jury, and they rely upon the decision of this court in the case of Kerr v. Force [supra]; Starkie. Ev.; and Cullum v. Bevans, 6 Har. & J. 469. On the other side, the counsel for the plaintiff cited Evans, Prac. (Md.) 296, and Moncure v. Dermott [supra]. The case of Kerr v.

Force seems to have been.-well considered, and is decisive of the present question, unless it be overruled by the-cáse of Moncure v. Dermott, or controlled by the case of Kearney v. Gough, 5 Gill & J. 457, cited by Evans on page 296. In the case of Kerr v.

Force there seems to have been more, reason than in the present to permit the plaintiff to open and close the argument to the: jury, because the court had directed the jury to assess the plaintiff’s damages upon a demurrer' which had been been decided in his favor, yet tlie court said that that circumstance did not throw the affirmative on the plaintiff, and said also that the uniform practice of this court had been that the party who held the affirmative of the issue should open and dose, unless there was some issue in which the plaintiff held the affirmative, in which case the plaintiff had a right to open and close the whole ease to the jury; observing also that in all cases the plaintiff must show his damages, and if that were a good cause for giving him the right to open and close, he would have it in all cases whether he held the affirmative of the issue or not.

It may also be observed that the question of damages does not arise until the issue is found for the plaintiff. In the case of Moncure v. Dermott, one of the pleas was “covenants performed,” but before an issue could be made up on that plea there must have been a replication setting forth some special breach which would throw the burden of proof upon the plaintiff. That ease, therefore, cannot be considered as inconsistent with that of Kerr v. Force. I have not seen the case of Kearney v. Gough, cited by Mr. Evans from 5 Gill & J. 439.

Whether the quotation is a mere dictum of one of the judges, or a decision of the court, does not appear. Judge Dorsey, in delivering the opinion of the court of appeals in Maryland, says: “No principle of law seems more universal or better established than that the onus probandi rests on the party who maintains the affirmative side of the issue.” And nothing can be more natural than that he who has the onus pro-bandi should commence the proceedings before the jury, for before he moves nothing can be done. The other party has nothing to say.

It is right also that he who commences the contest should have a right to reply to the defensive allegations of the other party. I am therefore of opinion, in the present case, that the defendant should open and close the argument to the jury.