"was framed in order that payment might be pleaded. Here the debt was once due."a The question was subsequently raised in an action of assumpsit for use and occupation, for 1057., in which the particulars of demand were as follow: "the plaintiff seeks to recover in this action the sum of 52l. 10s., being the balance of one year's rent, due from the defendant," &c.: plea, as to all but 52/. 108., *parcel of the moneys in the declaration mentioned, non assumpsit, on which the plaintiff took issue; as to 527. 10s. residue, payment, as to which the plaintiff entered a nolle prosequi. At the trial, the defendant proved payment of all the arrears of rent, but it was objected for the plaintiff, on the authority of the preceding case, that he was nevertheless entitled to a verdict for nominal damages on the record as it stood. And of this opinion was the court above, on the ground that the plea of payment must be understood as referring to the sum admitted in the particulars. "We do not feel it necessary, said Parke, B., in delivering the judgment of the court, "to decide whether the defendant was bound to plead payment, in order to avail himself of the sum admitted in the particulars, as decided in Ernest v. Brown; for we think, that without relying on that case, we must construe the plea as intended to apply to the payment admitted. To avoid similar questions in future, the obvious course which ought to be pursued in like cases, is for the plaintiff to aver the part payment in the declaration, or to insert in the declaration the real amount which the plaintiff seeks to recover."b After this came another action of assumpsit, in which the particulars contained a claim for wages, at 15s. a week, amounting to 1487., and gave credit for 701.; plea, non assumpsit. At the trial, the defence was, that the contract was for 7s. a week only, and that at that rate the defendant had paid the full amount; to prove the payment he put in the particulars, which admitted payment to the amount of 70.; the jury found a verdict for the defendant. On a motion for a new trial, on the ground that, as there was no plea of payment, the particulars should not have been received in evidence; or at all events, that they should go in reduction of damages only; the court held, that as the latter point was not taken at the trial they could not entertain it, and as to the former, that the evidence had been properly admitted. Parke, B., said, that if the latter point had been taken at the trial, they would have to consider whether a payment admitted by the particulars must be pleaded. He should have enter*tained little doubt on that subject were it not for the case of Ernest v. Brown; he had a difficulty in understanding the distinction taken in that case, between debt and assumpsit, and Ernest v. Brown, 3 Bing. N. C. 674. (32 Eng. C. L.) 3 Hodges, 79. Nicholl v. Williams, 2 Mees. & Wels, 760. a he was not yet satisfied that the opinion which he expressed in Coates v. Stevens was wrong.a The preceding cases, though apparently conflicting, may (with the exception of the dictum of Parke, B.,) be easily reconciled, if viewed in connection with other decisions. If an admission in the particulars be considered only as evidence of payment, as laid down by Tindal, C. J., in Ernest v. Brown, it follows from the case of Belbin v. Butt, that, without a plea of payment, the defendant cannot avail himself of it, in an action of debt; whereas Shirley v. Jacobs is an authority to show that in assumpsit the admission may be received in evidence in reduction of damages, without a plea of payment; so that these cases have established the distinction taken by the court in Ernest v. Brown, between debt and assumpsit. It is observable, that before the new rules, it had been held, that if the defendant availed himself of an admission in the particulars in order to show payment, it should be considered as his evidence, so as to entitle the plaintiff's counsel to a reply. And the new rules do not appear to have made any alteration in that respect; for though they require the particulars of demand to be annexed to the declaration, still, as we have seen, the rule is not imperative on the plaintiff, and even if he does append the particulars to the record, they are not to be considered as incorporated with the declaration.f An objection to a bill of particulars on the ground of variance, or of its inadmissibility in evidence," should be taken at the trial. Payment of money into court does not operate *as an admission of the particulars of demand,' nor of a liability on all the contracts stated in the particulars Kenyon v. Wakes, 2 Mees. & Wels. 764. See Booth v. Howard, 5 Dowl. 438, ante, 175. b2 Mees. & Wels. 422. 1 Mur. & Hur. 70, ante, 716. d 2 Bing. N. C. 88. (29 Eng. C. L. 266.) 1 Hodges, 214, ante, 128. Rymer v. Cook, M. & M. 86, (22 Eng. C. L. 257,) post, 1307. • Ante, -n. d. Booth v. Howard, 1 W. W. & Dav. 54. 5 Dowl. 438, unte, 175. Patteson, J., laid down in this case, that the particulars of demand were for the benefit and information of the defendant, and that he need take no notice of them, as he was not bound to look out of the record. Bell v. Puller, 2 Taunt. 285. Kenyon v. Wakes, supra. Booth v. Howard, supra, ante, 174. THOUGH points of practice do not strictly fall within the design of this work, yet it is thought expedient to notice, in this place, some of the incidents of trials at nisi prius, and first of hearing counsel. When the jury are sworn, the junior counsel for the plaintiff opens the pleadings," after which, if the proof of the issue rest upon the plaintiff, his senior or leading counsel states his case to the jury, and after having examined witnesses in support of it, counsel for the defendant are heard, and if they call any witnesses, the plaintiff's counsel are entitled to the general reply." 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 prove those which are essential to his case, and 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 then entitled to a reply upon such evidence in support of his own affirmative, and the plaintiff's counsel to a general reply.b entitled to *By a general resolution of all the judges, the plaintiff is en- *1303 titled to begin in cases of slander, libel, and other actions for When the personal injuries, where the plaintiff seeks to recover actual plaintiff's damages of an unascertained amount, although the affirmative counsel is of the issue may, in point of form, be with the defendant. Therefore, where in an action for false imprisonment there was a plea of justification and no general issue, and a replication de injuria, it was held, that the plaintiff was entitled to begin.d So where to an action for a breach of promise of marriage the begin. Id. 502. Jackson v. Hesketh, 2 Stark. 521. (3 Eng. C. L. 456.) 1 Stark. Ev. 382. Carter v. Jones, 6 C. & P. 64. (25 Eng. C. L. 283.) 1 M. & Rob. 281. plaintiff does not the affirmative issue only plea was that the defendant had, after the promise, conducted herself in a lewd and unchaste manner, &c.; it was held that the plaintiff had a right to begin.a But if the plaintiff does not go for unliquidated damages, the case does not fall within the above rule, and the party on whom go for un- the affirmative issue lies has a right to begin. Therefore, where liquidated in an action of debt for a penalty of 50/. for carrying the plaindamages, tiff to a prison under mesne process, within twenty-four hours, the party the defendant pleaded that it was by the plaintiff's own consent; replication, that the plaintiff did not consent; held, that on these proceedings the defendant should begin, as the lies has a plaintiff did not go for unliquidated damages. And where in right to covenant to recover damages for the non-performance of an begin. agreement under seal, the defendant pleaded only that the deed was obtained by fraud and covin; it was held, that the affirmative of the issue being upon him, his counsel had a right to begin, "because," said Tindal, C. J., "the damages were not a matter of calculation." In considering, however, which party ought to begin, it is not so much the form of the issue which is to be considered as the substance and effect of it; and the judge will consider what is the substantial fact to be made out, and on whom it lies to make it out. Therefore, in an action of covenant for not re*1304 pairing, &c., *if the defendant plead affirmative pleas he is in general entitled to begin.d Where any affirmative proof is on the plaintiff, to show what damages he is entitled to, he has a right to begin. The plaintiff has a right to begin, although by a rule of court the defendant is under an obligation to admit the plaintiff's case. Where in assumpsit, the declaration stated that the defendant agreed to build houses according to a specification; breach, that he did not build according to the specification; plea, that the defendant did build according to the specification; held, that on this issue the plaintiff must begin, and prove that the defendant had not built according to the specification. So, where in assumpsit for work and labor, the defendant pleaded that the promise was made to the plaintiff and J. S., and not to the plaintiff alone; replication, that the promise was made to the plaintiff alone, and not to him and J. S.; held, that on this issue the plaintiff ought to begin." Harrison v. Gould, 7 C. & P. 580. son, 1 M. & Rob. 304. (32 Eng. C. L.) (32 Eng. C. L.) And see Burrell v. Nichol (25 Eng. C. L. 644.) Reeve v. Underhill, 6 C. & P. 773. d Lewis v. Wells, 7 C. & P. 221. (32 Eng. C. L.) Soward v. Leggatt, id. 613. * Per Lord Denman, C. J., in Absolom v. Beaumont, 1 M. & Rob. 441, n. 'Thwaites v. Sainsbury, 5 C. & P. 69. (24 Eng. C. L. 216.) And see Tuberville v. Patrick, 4 C. & P. 557. (19 Eng. C. L. 526.) Smith v. Davies, 7 C. & P. 307. (32 Eng. C. L.) Davies v. Evans, 6 C. & P. 619. (25 Eng. C. L. 564.) On a plea in abatement for non-joinder of a co-defendant, the counsel for the plaintiff is to begin, since it was ed on a the defen But when the general issue or common plea in denial is not When ispleaded, but issue is joined on a collateral fact, the proof of sue is joinwhich rests on the defendant, his counsel is entitled to begin.a collateral Therefore, where in an action on a bill of exchange by the in- fact, the dorsee against the acceptor, the defendant pleaded that it was proof of an accommodation bill, and that a blank acceptance had been which filled up, and applied in discharge of this and other bills; the rests on plaintiff replied, that the defendant broke his promise without dant, he such cause as in that plea alleged; held, that on these pleadings has a right the defendant was entitled to begin. So, where a defendant to begin. in assumpsit pleaded as to 201. payment, and as to the residue, a set-off; held, that on these pleadings he must begin. So, *where in an action on a check, the defendant pleaded that *1305 there was no consideration for the check; and the plaintiff replied, that there was consideration; held, that on this issue the defendant must begin. So where, in assumpsit on a bill of exchange by the indorsee against the acceptor, the only plea was that the bill had been altered after acceptance; held, that the defendant had a right to begin. So where in assumpsit for an unworkmanlike execution of a contract, the defendant pleaded that the work was properly done; held, that he was entitled to begin.f Where a mandamus to a rector to restore a parish clerk, the rector returned that the clerk was guilty of acts of intoxication and therefore he dismissed him; the clerk brought an action for a false return, and in his declaration recited the return, and negatived the allegations contained in it; the rector by his plea repeated the charges contained in the return; held, that on these pleadings, the defendant had the right to begin.s Where a defendant in replevin pleads property in a third Replevin. person, and issue is taken thereon, he is entitled to begin. But where the defendant avowed for rent, and the plaintiff pleaded in bar an agreement to set off another sum against the rent, and issue was taken on that plea; it was held, that the plaintiff was entitled to begin. In replevin, any issue in which the affirmative is on the plaintiff, gives him a right to begin. Where in assumpsit on a bill of exchange, with a count on an account stated, the defendant pleaded payment on the bill and non assumpsit to the account stated; the plaintiff having incumbent upon him to prove his damages. Roby v. Howard, 2 Stark. 555. (3 Eng. C. L. 472.) Tidd, Ñ. P. 502. Curtis v. Wheeler, 4 C. & P. 196. (19 Eng. C. L. 340.) And see Williams". Thomas, Id. 234. (19 Eng. C. L. 361.) J James v. Salter, 1 M. & Rob. 501. |