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OF THE INNER TEMPLE, ONE OP HER MAJESTY'S COUNSEL.

VOL. II.
A BA - MUR

LONDON:
V. AND R. STEVENS AND G. S. NORTON,
(Successors to the late J. & W. T. CLARKE, of Portugal Street,)

Law Booksellers and Publishers,
26 AND 39, BELL YARD, LINCOLN'S INN,

ANDA. MILLIKEN, DUBLIN.

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LAW OF EVIDENCE.

VOL. II.

PROOFS ON PARTICULAR ISSUES.

ABATEMENT. THE proof of the affirmative of the issue on a plea in abatement is, from - the very nature of the plea, usually incumbent on the defendant (a). This natural order is subject to inversion, either it seems in respect of the form of the issue, according to which the plaintiff takes the burthen of proof upon himself; as where the replication to a plea in abatement for nonjoinder in assumpsit, alleges that the defendant undertook solely to pay (6); or, which more frequently happens, in consideration of the plaintiff having to prove the amount of his damages. In strictness the question as to damages does not arise until the issues have been disposed of, and it might seem to be more convenient to try the issues first, for if the defendant succeed the inquiry as to damages is unnecessary. The course of practice is otherwise, and so far as any precise rule can be collected it seems to be this, that if the amount of damages be in dispute, the plaintiff is entitled to begin, although the proof of the issue joined may be incumbent on the defendant (c); but that if the damages be merely nominal, or can be ascer

(a) See tit. ORDER OP PROOF, supra, Vol. I. In Fowler v. Costar, M. & M. 241, in an action on a bill of exchange, and the non-joinder of a joint contractor pleaded; Lord Tenterden permitted the defendant to begin, observing that where it appeared by the record or statement of counsel, that there was no dispute about the sum to be recovered, the damages being either nominal or mere matter of computation, then if the affirmative was on the defendant, he ought to begin.

(6) See Young v. Bairner, 1 Esp. C. 103.

(c) Indebitatus assumpsit for goods sold, plea non-joinder of others as defendants, Lord Denman held that the plaintiff was entitled to begin, but that the defendant might do so if he wonld admit the amount claimed; Morris v. Lotan, 1 M. & R. 233. In Lacon v. Higgins, 3 Starkie's C. 178, the defendant having pleaded her coverture to an action for goods sold, her counsel were permitted by Abbott, L. C. J. to begin, on condition of admitting the amount. In Roby v. Howard, 2 Starkie's C. 555, non

VOL. II.

joinder having been pleaded to a declaration for laying out the plaintiff's money on an insufficient security, the same learned Judge was of opinion that the plaintiff's counsel ought to begin, since it was incumbent on the plaintiff to prove his damages. See also Stansfield v. Levy, 3 Starkie's C. 8; Fowler v. Costar, M. & M. 241. In some instances, the question as to beginning appears to have been regarded as one for the discretion of the court, Burrell v. Nicholson, 1 M. & R. 304. Bayley, J. at the York Summer Assizes 1821, directed that the defendant should begin, and that the question of damages should, if necessary, be tried afterwards. See Young v. Bairner, 1 Esp. C. 103; Jackson v. Hesketh, 2 Starkie's C. 518. In the case of Hutchinson v. Fernie, 3 M. & W. 305, the court intimated that a clear case of erroneous direction in this respect, would be a ground of new trial. In the case of Stansfield v. Lery above cited, Abbott, L. C. J. held that where the plaintiff is allowed to begin, he may confine himself to proof of damages, and reserve his case in reply to the plea.

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