five of them, it is fatal. Or if, in replevin of cattle, the defendant avow the taking damage feasant, and the plaintiff plead in bar a prescriptive right of common for all the cattle, on which issue is taken, and the proof be of such right for only a part of the cattle, it is fatal.1 § 72. Prescriptions. But a distinction is to be observed between cases, where the prescription is the foundation of the claim, and is put in issue, and cases where the action is founded in tort, for a disturbance of the plaintiff in his enjoyment of a prescriptive right. For in the latter cases it is sufficient for the plaintiff to prove a right of the same nature with that alleged, though not to the same extent; the gist of the action being the wrongful act of the defendant, in disturbing the plaintiff in his right, and not the extent of that right. Therefore, where the action was for the disturbance of the plaintiff in his right of common, by opening stone quarries there, the allegation being of common, by reason both of a messuage and of land, whereof the plaintiff was possessed, and the proof, in a trial upon a general issue, being of common by reason of the land only, it was held no variance; the court observing, that the proof was not of a different allegation, but of the same allegation in part, which was sufficient, and that the damages might be given accordingly. Yet in the former class of cases, where the prescription is expressly in issue, proof of a more ample right than is claimed will not be a variance; as, if the allegation be of a right of common for sheep, and the proof be of such right, and also of common for cows.3 § 73. Amendments to remedy variance. But the party may now, in almost every case, avoid the consequences of a variance between the allegation in the pleadings and the state of facts proved, by amendment of the record. This power was given to the courts in England by Lord Tenterden's Act, in regard to variances between matters in writing or in print, produced in evidence, and the recital thereof upon the record; and it was afterwards extended to all other matters, in the judgment of the court or judge not material to the merits of the case, upon such terms as 1 Rogers v. Allen, 1 Campb. 313, 315; Rotherham v. Green, Noy, 67; Conyers v. Jackson, Clayt. 19; Bull. N. P. 299. 2 Rickets v. Salway, 2 B. & A. 860; Yarley v. Turnock, Cro. Jac. 629; Manifold v. Pennington, 4 B. & C. 161. 8 Bushwood v. Pond, Cro. El. 722; Tewksbury v. Bricknell, 1 Taunt. 142; supra, §§ 58, 67, 68. 49 Geo. IV. c. 15. 5 By Stat. 3 & 4 Wm. IV. c. 42, § 23. to costs and postponement as the court or judge may deem reasonable. The same power, so essential to the administration of substantial justice, has been given by statutes to the courts of most of the several States, as well as of the United States; and in both England and America these statutes have, with great propriety, been liberally expounded, in furtherance of their beneficial. design. The judge's discretion, in allowing or refusing amendments, like the exercise of judicial discretion in other cases, cannot, in general, be reviewed by any other tribunal.2 It is only in the cases and in the manner mentioned in the statutes, that the propriety of its exercise can be called in question. 1 See Hanbury v. Ella, 1 Ad. & El. 61; Parry v. Fairhurst, 2 Cr. M. & R. 190, 196; Doe v. Edwards, 1 M. & Rob. 819; s. c. 6 C. & P. 208; Hemming v. Parry, 6 C. & P. 580; Mash v. Densham, 1 M. & Rob. 442; Ivey v. Young, Id. 545; Howell v. Thomas, 7 C. & P. 342; Mayor, &c., of Carmarthen v. Lewis, 6 C. & P. 608; Hill v. Salt, 2 C. & M. 420; Cox v. Painter, 1 Nev. & P. 581; Doe v. Long, 9 C. & P. 777; Ernest v. Brown, 2 M. & Rob. 13; Story v. Watson, 2 Scott, 842; Smith v. Brandram, 9 Dowl. 430; Whitwell v. Scheer, 8 Ad. & El. 301; Read v. Dunsmore, 9 C. & P. 588; Smith v. Knowelden, 8 Dowl. 40; Norcott v. Mottram, 7 Scott, 176; Legge v. Boyd, 5 Bing. N. C. 240. Amendments were refused in Doe v. Errington, 1 Ad. & El. 750; Cooper v. Whitehouse, 1 C. & P. 545; John v. Currie, Id. 618; Watkins v. Morgan, Id. 661; Adams v. Power, 7 C. & P. 76; Brashier v. Jackson, 6 M. & W. 549; Doe v. Rowe, 8 Dowl. 444; Empson v. Griffin, 3 P. & D. 168. The following are cases of variance, arising under Lord Tenterden's Act. Bentzing v. Scott, 4 C. & P. 24; Moilliet v. Powell, 6 C. & P. 223; Lamey v. Bishop, 4 B. & Ad. 479; Briant v. Eicke, Mood. & Malk. 359; Parks v. 2 Doe v. Errington, 1 M. & Rob. 344, n.; Mellish v. Richardson, 9 Bing. 125; Parks v. Edge, 1 C. & M. 429; Jenkins v. Phillips, 9 C. & P. 766; Merriam v. Langdon, 10 Conn. 460, 473; Clapp v. Balch, 3 Greenl. 216, 219; Mandeville v. Wilson, 5 Cranch, 15; Marine Ins. Co. v. Hodgson, 6 Cranch, 206; Walden v. Craig, 9 Wheat. 576; Chirac v. Reinicker, 11 Wheat. 302; United States v. Buford, 3 Peters, 12, 32; Benner v. Frey, 1 Binn. 366; Bailey v. Musgrave, 2 S. & R. 219; Bright v. Sugg, 4 Dever. 492. But if the judge exercises his discretion in a manner clearly and manifestly wrong, it is said that the court will interfere and set it right. Hackman v. Fernie, 1 M. & W. 505; Geach v. Ingall, 9 Jur. 691; 14 M. & W. 95. CHAPTER III. OF THE BURDEN OF PROOF. § 74. Upon which party it lies. A third rule which governs in the production of evidence is, that the obligation of proving any fact lies upon the party who substantially asserts the affirmative of the issue. This is a rule of convenience, adopted not because it is impossible to prove a negative, but because the negative does not admit of the direct and simple proof of which the affirmative is capable. It is, therefore, generally deemed sufficient, where the allegation is affirmative, to oppose it with a bare denial, until it is established by evidence. Such is the rule of the Roman law. "Ei incumbit probatio qui dicit, non qui negat."2 As a con 1 Dranguet v. Prudhomme, 3 La. 83, 86; Costigan v. Mohawk & Hudson R. Co., 2 Denio, 609 [Commonwealth v. Tuey, 8 Cush. 1; Burnham v. Allen, 1 Gray, 496, 499; Crowninshield v. Crowninshield, 2 Gray, 524, 529. The burden of proof and the weight of evidence are two very different things. The former remains on the party affirming a fact in support of his case, and does not change in any aspect of the cause; the latter shifts from side to side in the progress of a trial according to the nature and strength of the proofs offered in support or denial of the main fact to be established. Central Bridge Corporation ". Butler, 2 Gray, 132; Blanchard v. Young, 11 Cush. 345; Spaulding v. Hood, 8 Cush. 605, 606. Where the proof on both sides applies to one and the same proposition of fact, the party whose case requires the proof of that fact has all along the burden of proof, though the weight in either scale may at times preponderate. Powers v. Russell, 13 Pick. (Mass.) 76. Ordinarily, a witness who testifies to an affirmation is entitled to credit in preference to one who testifies to a negative, because the latter may have forgotten what actually occurred, while it is impossible to remember what never existed. Huidekoper, 17 Wall. (U. S.) 384]. 2 Dig. lib. 22, tit. 3, 1. 2; Mascard. de Prob. Concl. 70, tot.; Concl. 1128, n. 10. See also Tait on Evid. p. 1. [In general, where the plaintiff makes out a prima Stitt v. facie case, although the burden always remains on him to support his case, yet this prima facie case supports it, and becomes conclusive unless met and controlled by the defendant; and, while the burden of proof does not strictly shift, but still remains with the plaintiff upon the facts he alleges, yet he may stand upon his prima facie case, and the defendant must take up the onus of controlling it, and this burden is upon him. Burnham v. Allen, 1 Gray (Mass.), 500; Eaton v. Alger, 47 N. Y. 51; Caldwell v. N. J. St. Nav. Co., Ib. 290. Strictly speaking, there is no shifting of burdens from one party to the other in the progress of a trial upon any specific allegation essential to his case. But where the plaintiff has carried his burden to that point at which he will be entitled to a verdict, if nothing is done by the defendant, then the defendant takes up his burden, and meets and counteracts the plaintiff's case, if he can. But each carries his own burden throughout the trial, and that is to prove the facts he alleges. Crowninshield v. Crowninshield, 2 Gray (Mass.), 524. "The burden upon the plaintiff is coextensive only vith the legal propositions upon which his case It applies to every fact which is essential or necessarily involved in that proposition. It does not apply to facts relied on in defence to establish an independent proposition, however inconsist ent it may be with that upon which the rests. §76. Unliquidated damages. The difficulty in determining this point exists chiefly in those cases, where the action is for unliquidated damages, and the defendant has met the whole case with an affirmative plea. In these actions the practice has been various in England; but it has at length been settled by a rule, by the fifteen judges, that the plaintiff shall begin in all actions for personal injuries, libel, and slander, though the general issue may not be pleaded, and the affirmative be on the defendant.1 In actions upon contract, it was, until recently, an open question of practice; having been sometimes treated as a matter of right in the party, and at other times regarded as resting in the discretion of the judge, under all the circumstances of the case. But it is now settled, in accordance with the rule adopted in other actions. In this country it is generally deemed a matter of discretion, to be ordered by the judge at the trial, as he may think most conducive to the administration of justice; but the weight. of authority, as well as the analogies of the law, seem to be in favor of giving the opening and closing of the cause to the plaintiff, wherever the damages are in dispute, unliquidated, and to be settled by the jury upon such evidence as may be adduced, and not by computation alone.1 v. Mason, 4 Pick. 156; Leech ". Armitage, 2 Dall. 125. [Where a defendant under a rule of court filed an admission of the plaintiff's prima facie case, in order to obtain the right to open and close, he was held not to be thereby estopped from setting up in defence the statute of limitations, Emmons v. Hayward, 11 Cush. 48; nor from showing that the plaintiff had no title to the note sued on. Spaulding v. Hood, 8 Cush. 602. An auditor's report in favor of the plaintiff will not give the defendant the right to open and close. Snow v. Batchelder, 8 Cush. 513.] 1 Carter v. Jones, 6 C. & P. 64. 2 Bedell v. Russell, R. Y. & M. 293; Fowler v. Coster, 1 M. & M. 241; Revett v. Braham, 4 T. R. 497; Hare v. Munn, 1 M. & M. 241, n.; Scott v. Hull, 8 Conn. 296; Burrell v. Nicholson, 6 C. & P. 202; 1 M. & R. 304, 306; Hoggett v. Exley, 9 C. & P. 324. See also 3 Chitty, Gen. Practice, 872-877. 3 Mercer v. Whall, 9 Jur. 576; 5 Ad. & El. N. 8. 447. 4 Such was the course in Young v. Bairner, 1 Esp. 103, which was assumpsit for work, and a plea in abatement for the non-joinder of other defendants, s. P., Robey v. Howard, 2 Stark. 555; s. p., Stansfield v. Levy, 3 Stark. 8; Lacon v. Higgins, 2 Stark. 178, where, in assumpsit for goods, coverture of the defendant was the sole plea; Hare v. Munn, 1 M & M. 241, n., which was assumpsit for money lent, with a plea in abatement for the non-joinder of other defendants; S. P., Morris v. Lotan, 1 M. & Rob. 233; Wood v. Pringle, Id. 277, which was an action for a libel, with several special pleas of justification as to part, but no general issue; and, as to the parts not justified, judgment was suffered by default. See acc. Comstock v. Hadlyme, 8 Conn 261; Ayer v. Austin, 6 Pick. 225; Hoggett v. Exley, 9 C. & P. 324; s. c. 2 M. & Rob. 251. On the other hand are Cooper v. Wakley, 3 Car. & P. 474; s. c. 1 M. & M. 248, which was a case for a libel, with pleas in justification, and no general issue; but this is plainly contradicted by the subsequent case of Wood v. Pringle, and has since been overruled in Mercer v. Whall; Cotton v. James, 1 M. & M. 273; s. c. 3 Car. & P. 505, which was trespass for entering the plaintiff's house, and taking his goods with a plea of justification under a commission of bankruptcy; but this also is expressly Where the proceed § 77. In proceedings not at common law. ings are not according to the course of the common law, and contradicted in Morris v. Lotan; Bedell v. Russell, Ry. & M. 293, which was trespass of assault and battery, and battery, and for shooting the plaintiff, to which a justification was pleaded; where Best, J., reluctantly yielded to the supposed uthority of Hodges v. Holden, 3 Campb. 866, and Jackson v. Hesketh, 2 Stark. 581; in neither of which, however, were the damages controverted; Fish v. Travers, 3 Car. & P. 578, decided by Best, J., on the authority of Cooper v. Wakley, and Cotton v. James; Burrell v. Nicholson, 6 Car. & P. 202, which was trespass for taking the plaintiff's goods in his house, and detaining them one hour, which the defendant justified as a distress for parish rates; and the only issue was, whether the house was within the parish or not. But here, also, the damages were not in dispute, and seem to have been regarded as merely nominal. See also Scott v. Hull, 8 Conn. 296. In Norris v. Ins. Co. of North America, 3 Yeates, 84, which was covenant on a policy of insurance, to which performance was pleaded, the damages were not then in dispute, the parties having provisionally agreed upon a mode of liquidation. But in England the entire subject has recently undergone a review, and the rule has been established, as applicable to all personal actions, that the plaintiff shall begin, wherever he goes for substantial damages not already ascertained. Mercer v. Whall, 9 Jur. 576; 5 Ad. & El. N. s. 447. In this case Lord Denman, C. J., in delivering the judgment of the court, expressed his opinion as follows: "The natural course would seem to be, that the plaintiff should bring his own cause of complaint before the court and jury, in every case where he has any thing to prove either as to the facts necessary for his obtaining a verdict, or as to the amount of damage to which he conceives the proof of such facts may entitle him. The law, how ever, has by some been supposed to differ from this course, and to require that the defendant, by admitting the cause of action stated on the record, and pleading only some affirmative fact, which, if proved, will defeat the plaintiff's action, may entitle himself to open the proceeding at the trial, anticipating the plaintiff's statement of his injury, disparaging him and his ground of complaint, offering or not offering, at his own option, any proof of his defensive allegation, VOL. I. 7 and, if he offers that proof, adapting it not to the plaintiff's case as established, but to that which he chooses to represent that the plaintiff's case will be. It appears expedient that the plaintiff should begin, in order that the judge, the jury, and the defendant himself should know precisely how the claim is shaped. This disclosure may convince the defendant that the defence which he has pleaded cannot be established. On hearing the extent of the demand, the defendant may be induced at once to submit to it rather than persevere. Thus the affair reaches its natural and best conclusion. If this does not occur, the plaintiff, by bringing forward his case, points his attention to the proper object of the trial, and enables the defendant to meet it with a full understanding of its nature and character. If it were a presumption of law, or if experience prove that the plaintiff's evidence must always occupy many hours, and that the defendant's could not last more than as many minutes, some advantage would be secured by postponing the plaintiff's case to that of the defendant. But, first, the direct contrary in both instances may be true; and, secondly, the time would only be saved by stopping the cause for the purpose of taking the verdict at the close of the defendant's proofs, if that verdict were in favor of the defendant. This has never been done or proposed; if it were suggested, the jury would be likely to say, on most occasions, that they could not form a satisfactory opinion on the effect of the defendant's proofs till they had heard the grievance on which the plaintiff founds his action. In no other case can any practical advantage be suggested as arising from this method of proceeding. Of the disadvantages that may result from it, one is the strong temptation to a defendant to abuse the privilege. If he well knows that the case can be proved against him, there may be skilful management in confessing it by his plea, and affirming something by way of defence which he knows to be untrue, for the mere purpose of beginning." See 9 Jur. 578; 5 Ad. & El. N. s. 458. Ordinarily speaking, the decision of the judge, at Nisi Prius, on a matter resting in his discretion, is not subject to revision in any other court. But in Hackman v. Fernie, 5 M. & W. 505, the court observed that, though they might not interfere in a |