devisee named in the will, as the devisee named in the will does to the heir-at-law." In the case of Doe d. Warrenv. Bray, (1) the lessor of the plaintiff claimed as heir-at-law, the defendant, who was his younger brother, contended that the lessor of the plaintiff was illegitimate, and admitting that he was heir-at-law, if legitimate, contended that that admission gave the defendant the right to begin. But Vaughan, J., ruled that the onus probandi was on the plaintiff, to prove that he was heir-at-law. In the case of Doe d. Wollaston v. Barnes, (2) ejectment was brought to recover premises of which John Clavell died seised. After his death, Sophia Richards, his sister and heiress, took possession, and died, leaving a will of the property in question. The lessors of the plaintiff were the devisee of Sophia Richards, and her heir-at-law, who was also heir-at-law of John Clavell. Lord Denman ruled, that the defendant was entitled to begin, by making admissions, that John Clavell died seised, that Sophia Richards was his heiress, and had possession of the property from the time of his death, that the plaintiff was heir-at-law of John Clavell and of Sophia Richards, and that the plaintiff was entitled to the property, unless he (the defendant) proved the will of John Clavell. Lord Denman said, "It is the duty of a Judge, in cases of this sort, to decide the right to begin, as far as can be, on some certain principle. If, instead of the general form and statement in ejectment, the titles had been deduced in the pleadings, the issue must have been on the will, and I think that is the correct mode of trying the question. I remember a case at Nottingham, in which I was for the defendant, claiming under a will: the plaintiff claimed under a prior will, which I admitted, and was allowed to begin." It seems that the rule laid down by Lord Denman will be generally followed. In a case (3) where the analogy of ejectment to other actions and to the consequent action for mesne process was fully considered, (and where it was held, that a previous recovery in ejectment was not conclusive evidence of the title of the plaintiff in an action of trespass (1) M. & M. 166. (3) Doe v. Huddart, 2 C. M. & R. 316. for mesne profits,) Bolland, B., said, in delivering the judgment of the Court, "It has been urged, that the action of ejectment is a creature of the Court, and that, therefore, there is a sufficient ground of distinction; but it would surely be more reasonable to conclude, that the Courts, in creating these actions, would, as far as possible, follow the course in other actions, and not unnecessarily create an anomaly to the general rules of evidence upon trials." In the case of Doe d. Smith v. Smart, (1) the plaintiff claimed as heir-at-law, and as to part of the property as assignee of an outstanding term, and the defendant, who claimed as devisee, refused to admit the assignment; Gurney, B., after consulting Patteson, J., ruled nevertheless, that the defendant was entitled to begin. "The real question in dispute is the validity of this will. The mischief would be extremely great, if a party, by merely getting an outstanding term, should obtain an advantage to which he is not really entitled." It may be convenient here to mention the case of Goodtitle d. Rivett v. Braham, (2) in which the lessor of the plaintiff claimed as heir-at-law, and the defendant as devisee; the report states, that "at the outset of the cause, a question arose, who was entitled to the general reply? and the Court decided, that if the plaintiff proved his pedigree and stopped, and the defendant set up a new case, which the plaintiff answered by evidence, the defendant should have the general reply. It may be observed, that the right to the general reply usually attends the right to begin. In this case, it does not appear, whether the defendant was called upon to admit the plaintiff's title under penalty of losing the right to begin; but since the practice is clearly settled as to the effect of such admissions, it may be doubted whether, after putting the plaintiff to prove his case, the defendant would now be held entitled to the general reply. (1) 1 M. & R. 476. (2) Decided in 1792. 4 T. R. 497. Of the right to give evidence in reply. The case of Rees v. Smith, (1) was an action of trespass for breaking and entering the plaintiff's house, and seizing and converting the furniture. The defendant pleaded the general issue, with two special pleas of justification, alleging that his goods had been clandestinely and fraudulently removed to avoid a distress for rent. The replication took issue upon the fact of fraudulent and clandestine removal. On the part of the plaintiff, a prima facie case of trespass was proved as alleged, and the defendant then went into evidence, in order to shew, as stated in the pleas, that the removal was fraudulent and clandestine. General evidence being afterwards offered by the plaintiff, to shew that the removal was not fraudulent and clandestine, Lord Ellenborough was of opinion, that it was not competent to the plaintiff, in that stage of the cause, to enter into such evidence, since all the circumstances were in issue, and the removal might have been proved to have been bona fide in the first instance: that the general rule was, that when by pleading, or by means of notice, the defence was known, the counsel for the plaintiff was bound to open the whole case in chief, and could not proceed in parts; and, therefore, that the plaintiff in this case should at once have proceeded to his evidence, to repel the inference of a fraudulent removal, and to shew that it had been in contemplation of the party to change his residence previously. His Lordship afterwards added, "As a general rule, I beg it may be understood, that a case is, not to be cut into parts, but when it is known what the question in issue is, it must be met at once. If, indeed, any one fact be adduced by the defendant, to which an answer can be given, the plaintiff must have an opportunity given for so doing; but this must be understood of a specific fact; he cannot go into general evidence in reply to the defendant's case. There is no instance in which the plaintiff is entitled to go into half his case, and reserve the remainder." A contrary practice seems to be now established, on the (1) 2 Stark. N. P. C. 31. authority of several rulings by Lord Tenterden. (1) Indeed, since the recent alteration of the rules of pleading, by which very numerous issues are raised on the record, a strict adherence to Lord Ellenborough's rule would lead, on the one hand, to great injustice, if the consequence were, that the plaintiff should be shut out, from offering evidence in answer to the defendant's case; on the other hand, a great waste of time would be caused by receiving the plaintiff's evidence upon issues, which, it may turn out, the defendant is quite unable to prove. (2) The practice however is, that the plaintiff may elect to give such evidence, and, if he elect, he is bound to go into his whole case. If he undertake to repel the defendant's plea, he must go through all the evidence, which he proposes to give for that purpose. It is much more convenient for the due administration of justice, that that course should be adopted, otherwise there would be no end to evidence on either side, as the defendant would be entitled, to call witnesses to answer those last produced by the plaintiff, to rebut the justification. (3) Still, however, it is apprehended that this rule must be taken with the qualification, which Lord Ellenborough's rule admitted, namely, that where the defendant proves a specific fact, as evidence in support of an issue, the plaintiff may give evidence in contradiction to that fact; in the majority of cases, the plaintiff could not be reasonably called upon to give such contradictory evidence by anticipation, nor could he foresee that such a fact would be proved. When evidence is adduced by both parties, the general rule of the general is, that the party who begins is entitled to reply, and in replying right to reply. he is not restricted to a comment on the evidence advanced in opposition to his case, but may remark upon the whole of the evidence before the Court. If evidence is called by the plaintiff in reply to that given by the defendant, the latter has the right (1) Browne v. Murray, R. & M. 254. Sylvester v. Hall, ib. n. (2) See Williams v. Davies, 1 C. & M. 464. (3) By Lord Tenterden, in Browne v. Murray. R. acc. by Park, J., in Roe, Bart. v. Day, 7 C. & P. 707. Criminal cases. to remark upon that evidence, but not to comment generally on the case. If in answer to the case made by the party who begins, the other party offers no evidence, the former has no right of reply; he is, however, said to have such a right, if the improper course be pursued of stating new facts, though no evidence be given in support of the statement; (1) but this privilege to reply must be always subject to the discretion of the judge, and is not claimable as a matter of right. (2) In a recent case, (3) where the counsel for the defendant, having proved a document in cross-examination, read it in the course of his address to the jury, without putting it in evidence, Parke, B., on the right to reply being claimed, said, "I have often heard it threatened, that if a counsel or a party opened new facts, the opposite side would have the reply, but I never heard such a reply actually made." The learned Judge intimated his opinion, that in good faith the document ought to be put in: the defendant's counsel put it in accordingly, and the plaintiff replied. The rule in criminal cases differs from that in civil, from the circumstance, that as the crown is always a party, the counsel for the prosecution have in strictness the right to reply, whether evidence be adduced in defence or not. (4) Prisoners' counsel bill. Rules. (4) Since the prisoner's counsel bill came into operation, the practice under it has been regulated by the following rules, agreed to by twelve of the judges, three of them being absent: 7 C. & P. 676. I. That where a witness for the crown has made a deposition before a magistrate, he cannot, upon his cross-examination by the prisoner's counsel, be asked whether he did or did not, in his deposition, make such or such a statement, until the deposition itself has been read, in order to manifest whether such statement is or is not con tained therein; and that such deposition must be read as part of the evidence of the cross-examining counsel. II. That, after such deposition. has been read, the prisoner's counsel may proceed in his cross-examination of the witness, as to any supposed contradiction or variance between the testimony of the witness in Court and his former deposition; after which the counsel for the prosecution may re-examine the witness, and after the prisoner's counsel has addressed the jury, will be entitled to the reply. And in case the counsel for the prisoner comments upon any supposed variance or contradiction, without having read the deposition, the Court may direct it to be read, and the counsel for the prosecution will be entitled to reply upon it. III. That the witness cannot, in |