Ayer v. Austin

23 Mass. 225

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1828
• Status: Published

Opinion

Parker C. J.

delivered the opinion of the Court. On the point raised in this case, which is matter of practice only, we are all clear that the course of argument prescribed at trie trial was right. The general rule is, that the plaintiff, who has the burden of proof, shall have the general reply or closing argument. There has been an exception in our practice,, only where the defendant by his plea admits the whole cause of action stated in the declaration, and undertakes to remove or defeat it by the matter set up in his bar. The cases have usually been trespass, where the defendant acknowledges the act, and claims in his plea the soil and freehold in himself, or some one under whom he acts as a servant or by license ; — slander, in which a justification only is pleaded ; — and debt on obligation, where the contract is admitted and some matter of defeasance or discharge is pleaded. There are other cases depending upon the same principle, that is, where, by the pleadings, nothing essential to the action is left for the plaintiff to prove, and where the finding of the issue for the defendant depends upon affirmative proof by him. In all such cases, however, if the defendant pleads the general issue also, the r'ght of reply has been accorded to the plaintiff, even if on trial the defendant waives any proof on the part of the plaintiff to maintain that issue. This having been the uniform practice, according to the recollection of all of us, it is best to adhere to it, although in other cases, and in such as is before us, where the plaintiff was saved the trouble of proof to make out his case, by admission of the necessary facts, the reason may be quite as strong for giving this privilege to the defendant. The right of closing a cause is not very essential to the procurement of a right verdict, if the judge who presides is cautious in summing up the evidence. If, as in a neighbouring State, the court were mere silent spectators of forms without the right of charging the jury, the privilege of closing would be more worth contending for than with us, where the judge has the last word instead of the counsel.

Motion for new trial overruled.