Harvey v. Brouilette , 61 Vt. 525 ( 1889 )

The opinion of the court was delivered by

Tyler, J.

The defendant insists upon three exceptions to the .rulings and charge of the court below.

I: As to the limitation of the defendant in cross-examination of the plaintiff: It appears that the defendant had, without •objection of the plaintiff, offered evidence in defense tending to ■show that the note in suit was given on condition that the girl, .Ella Faneuf, should be confined and require the money. Tlie plaintiff in rebuttal testified that when Prosper Brouilette went to his office under arrest, he read the complaint to him and .advised him to procure counsel; that Prosper replied he desired no ■counsel, and inquired what he could do, and that plaintiff informed him that he could do one of three things, settle with the girl, marry her, or go to jail. The exceptions state that in cross-examination of the plaintiff the defendant’s counsel inquired at some length about what was said about obtaining counsel and giving bail, and that after spending some time upon this subject, the court said to counsel that all preliminary talk was immaterial, and the only question in issue was as to the alleged conditional character of the note, and limited the cross-examination to the subject of the settlement and its terms, in which ruling the defendant claims there was error.

It is true that when a party becomes a witness in his own behalf he subjects himself .to cross-examination by the adverse party. It is also true that the length of cross-examination is within the control of the presiding judge. We think the limitation in this case was a matter of. proper judicial discretion, and not a deprivation of defendant’s legal right. The exceptions átate that there was nothing in this preliminary conversation that had relation to the alleged condition in the note. The defendant’s counsel was permitted to cross-examine upon all parts of the conversation, and we' hold that the limitation by the court as to the immaterial parts was proper.

II. It is claimed there was error in the refusal of the court to allow defendant’s counsel to make the opening and closing arguments to the jury, and authorities are cited showing that in several of the other States it has been held that the counsel for the party who takes the affirmative of the issue to be tried is entitled’ to the right here contended for as to the argument.

We do not deem it necessary to discuss the cases referred to, for the reason that, by the long settled practice in this State, when no special plea in bar is filed, the general issue is understood to be pleaded and the burden.is upon the plaintiff to prove his declaration. In this case the declaration is in' general assumpsit, and, under our County Court rule, number 12, the defendant demanded a specification, which the plaintiff furnished, namely, a copy of the note. No special plea having been filed the case went to trial on . the general issue, which was a denial of the material averments in the declaration. The issue was-whether or not the defendant promised to pay the plaintiff the sum alleged generally in the declaration and made definite in the specification. The onus was on .the plaintiff. Under the rule the plaintiff was not required to prove the execution of the note, the defendant not having given him notice in writing that he would dispute the signature; but the plaintiff was, however, obliged to produce his note in evidence in order to make out his-case.

Any case that stands on the general issue with a special pleat in bar, such as the statute of limitations, infancy, payment, or that the note was obtained by fraud or duress, would present the same question that is now presented in regard to the order of argument. The burden, though it may be light, is first upon the plaintiff, and then, his prima facie case being made, is, under the special plea in bar, shifted upon the defendant.

We apprehend that it will generally be found that in courts where the rule claimed by the defendant prevails, the general issue is not pleaded. Where the defendant confesses the plaintiff’s cause of action, and pleads matter in avoidance pf it, there is reason in his opening and closing the discussion, though in Page v. Osgood, 2. Gray, 260, Dewey, J., held that the plaintiff was entitled to open and close in all cases without' regard to the burden of’proof; and that when the defendant admitted the plaintiff’s cause of action,, and the only issue for the jury was .upon the defendant’s declaration in set-off, the plaintiff was still entitled to open and close the case, the court having adopted a rule-that required the general issue to be filed in all cases.'

III. If the plaintiff had claimed that he was a purchaser of the note for value, without notice of defense, it might have been material to have shown what he paid for it. As this case was presented, the sum paid was of no importance. His interest in the suit was that of an owner of the note.

The judgment of the County Court is affirmed.