Quarle v. Jones. should never be any trouble about it. Such testimony tended to show that the note was paid before endorsement, and at the time of endorsement, was therefore functus officio. APPEAL from the Bartholomew Common Pleas. WORDEN, J.-Suit by Quarle against Jones and Lafever upon a promissory note, made by the defendants to one Thomas Wilkerson, and by the latter endorsed, without recourse to the plaintiff. Judgment by default against Lefever. Jones answered, alleging payment of the note to Wilkerson before the assignment. Issue, trial by jury, verdict and judgment for defendant Jones. The plaintiff appeals and seeks to reverse the judgment on two grounds. 1. That the Court permitted improper evidence to go to the jury; and 2. That the verdict is not sustained by the evidence. Wilkerson, the payee and indorser of the note, testified as follows: "It, the note, was given as follows: I held a note against Samuel L. Lefever, and that was taken up, and Lefever gave me the note now sued on, in its place, and the note now sued on was secured by a mortgage executed by Jones to me. I always understood that the note sued on was Lefever's debt, and Jones was surety. Lefever paid the interest on it, annually. Along in the 1st of March, 1859, Lefever came down to my house, on the cars, and told me he came to lift the note. He said it was a lien on land, at that time owned by his wife and children. He wanted me to throw off a part. He told me if I would throw off about what it would cost for an attorney to collect it, that I could have the money on it. He stayed all night at my house, and the next morning I agreed to throw off the note, I think, 27 dollars and 65 cents. Lefever accepted the proposition, and he then paid me the full amount of the note, less the amount thrown off. When he handed me the money I handed him the note. He Quarle v. Jones. afterwards handed me back the note and said he wanted me to transfer it by indorsement in writing to Vincent A. Quarle, but I did not like to indorse it much, and objected to doing so, and he told me there should never be any trouble about the note, and I then did indorse it in writing, on the back of the note." The plaintiff excepted to the introduction of so much of the above evidence as related to the manner, terms, and circumstances of the indorsement of the note, for the reason that parol evidence could not control a written indorsement and that it was not relevant to the issue. The objection, we think, was clearly not well taken. We see nothing in the testimony that would in any degree violate the rule excluding parol evidence to contradict or vary the legal effect of a written instrument. It is clear that, if the note was paid to Wilkerson before indorsement, it was functus officio, and the indorsement of it by the payee to the plaintiff, could not revive it and give the latter a right of action against the makers. The evidence tended to prove such payment, and was relevant to the issue found. We have examined the evidence carefully, and although the weight of it may not accord with the verdict, yet it is such that under the well established rules of this Court, we can not disturb the decision of the Court below, in overruling a motion for a new trial. Per Curiam.-The judgment below is affirmed, with costs. Francis T. Hord, for the appellant. Thos. A. Hendricks and Stansifer & Herod, for the appellee. VOL. XX.-10 Bowen v. Spears et al. BOWEN v. SPEARS et al. PRACTICE.-A sued B on a note. B interposed no general denial to the complaint, but answered by way set-off. Held, That the defendant was entitled to open and close the argument on the trial, and that, the fact that the plaintiff replied affirmatively to the defendant's answer, setting up new matter, did not change the rule, because, until the defendant had proved his set-off, the plaintiff could not be required to prove any thing. Where there are several issues in a cause, and the plaintiff is required to prove any one of them before he is entitled to a verdict, he is entitled to open and close. Semble, That, when the defendant is entitled to the opening and close of the argument, he is also entitled to open and close the evidence, and if he waives the latter right, such waiver will extend also to the argument; but, where the record is silent on the subject, this Court will not presume that he waived the right to open and close the evidence. APPEAL from the Cass Circuit Court. WORDEN, J.-This was an action by the appellees against the appellant, upon a promissory note, made by the latter to the Lake Erie, Wabash and St. Louis Railroad Co., and indorsed by the company to the plaintiffs. Issue, trial, verdict and judgment for the plaintiffs. The first error assigned is upon the refusal of the Court to allow the appellant the opening and closing of the argument of the cause to the jury. The record shows that such was the ruling, and this is one of the causes for which a new trial was asked. In the opinion of the Court, this was error, for which the judgment will have to be reversed. The issues stood as follows: There was no general denial put in to the complaint. The defendant answered in three paragraphs by way of set-off, alleging an indebtedness from the railroad company to himself, which accrued before notice Bowen v. Spears et al. to him of the assignment of the note. The plaintiff replied: 1. By denial of the set-off; and, 2. Alleging affirmative matter, viz: That the defendant and the railroad company had accounted together and settled the matters thus set up by way of off-set. The statute provides that the party having the burthen of the issue, shall have the opening and closing of the argument. 2 R. S. 1852, p. 112, sec. 326. It is apparent that as the issues stood, the burthen was upon the defendant. If neither party had offered any evidence, the plaintiff would have been entitled to a verdict, because the cause of action was not denied, and the defence was wholly of an affirmative character. The fact that the plaintiffs, in addition to their denial of the set-off, had replied affirmatively thereto, setting up new matter, can not change the burthen, because until the defendants had proved the set-off, the plaintiffs could not be called upon to prove their special replication. But it is said that, where there are several issues, and the proof of one lies on the plaintiff, he is to begin. Jackson v. Pittsford, 8 Blackf. 194. This rule we recognize as correct. We understand it to mean that where there are several issues, and the plaintiff is required to prove any one of them, before he is entitled to a verdict, he is to begin. In the case cited, non assumpsit was put in, which threw the burthen upon the plaintiff and entitled him to begin. But it is claimed, that if the defendant was entitled to the opening and close of the argument, he was also entitled to proceed in the same order in respect to the evidence, and that by waiving his right to proceed in that order, in respect to the evidence, he waived also his right in that respect in reference to the argument. There is no doubt that the defendant was entitled to open and close the evidence, and if he waived that right and consented that the plaintiffs open and close the evidence, without reserving any right as to the argument, perhaps the waiver would extend also to the Markle v. Robertson. argument. But there is nothing in the record which shows that the appellant waived the right to open and close the evidence, nor that he did not exercise that right. For aught that appears, he opened and closed the evidence. We can not presume that the Court below deprived the appellant of a legal right, and that he acquiesced therein, and upon this presumption, base the further presumption that the appellant waived a further right. Per Curiam.-The judgment below is reversed, with costs, and the cause remanded. D. D. Pratt, for the appellant. W. Z. Stewart, for the appellees. MARKLE V. ROBERTSON. APPEAL from the Grant Circuit Court. Per Curiam.-On the 7th day of January, 1857, Patrick Treehan and wife executed a mortgage to William W. Woodward upon a tract of land. The mortgage was duly acknowledged and recorded. William B. Allen claims that the same land was conveyed to him on the 5th of January, two days prior to Woodward's mortgage. The Court below held that the land was not so conveyed; and whether that holding was erroneous is the only question. Nothing is disclosed as to the transaction in which, or the consideration upon which, Allen got the land. Allen testified that the deed was sent to him on the 5th of January, from Indianapolis; see Branham v. Bradford, 17 Ind. 47; but that it was not acknowledged, and he immediately returned it to the maker at Racine, Wisconsin, where it was witnessed and acknowledged |