It may be doubtful in this case to which party the opening and close would be given by the general rule. Chesley v. Chesley, 37 N.H. 229. And a failure of justice not being shown a result of the ruling on this point, the ruling is no cause for
new trial. Schoff v. Laithe, 58 N.H. 503; Fry v. Bennett, 28 N.Y. 324,329, 330; Belt v. Raguet, 27 Texas 471[27 Tex. 471], 481; Preston v. Walker, 26 Iowa 205; Wade v. Scott, 7 Mo. 509; Reichard v. Ins. Co., 31 Mo. 518; Marshall v. Wells, 7 Wis. 1; Perkins v. Guy, 55 Miss. 153; Proffatt Jury Trial, s. 153. An unfair advantage, supposed to be gained in some jurisdictions by the party having the close, is a right of presenting argument to which the other party cannot reply. But in our practice there is no such advantage. If the party who has not the close ought to be allowed to reply, his motion for leave to reply is granted. The party having the close makes the final reply; but he does not gain the advantage of an unfair trial by confining his adversary to one argument. A fair trial is the legal right of each party. And such a trial may require that the party who has not the close should have an opportunity to answer an argument by which he is surprised, or to offer a suggestion which he inadvertently omitted. Boardman v. Woodman, 47 N.H. 120, 141-144.
Upon the record containing the paper filed by the defendant, the evidence introduced by the plaintiffs in regard to the character and extent of their works, the number of persons employed by them, and other facts not bearing on the question of damages, was unnecessary and immaterial. The defendant's confession, made part of the record, left for the jury nothing but the question of damages. But the evidence not being prejudicial to the defendant, its admission is no cause for a new trial.
The defendant's motion to dismiss because the evidence showed only a private use, did not raise any other question than the constitutional one decided in this case, 56 N.H. 386. That question could be raised again in this case only on a motion for a rehearing Carter v. Jackson, 58 N.H. 156; Plaisted v. Holmes, 58 N.H. 619. And such a motion would not be seasonably made after the jury trial, which took place since the decision of that question. Preston v. T. Ins. Co., 59 N.H. 49.
The evidence offered by the defendant, of the sums paid by the plaintiffs to thirty-two persons for thirty-two rights of flowage, would be ineffective and immaterial if unaccompanied by other evidence tending to show the damage done in those cases, and such a state of facts as would enable the jury to draw a fair inference as to the value of the defendant's land from the value of the other tracts. If such other evidence were offered, one question would be, whether the thirty-two other cases should be opened for trial in this case. The practice of trying collateral issues has been considerably extended in this state during the last forty years. State v. Colston, 53 N.H. 483; State v. Lapage, 57 N.H. 245, 287, 301, 305; State v. Shaw, 58 N.H. 73; State v. Gorman, 58 N.H. 77; Hall v. Brown,58 N.H. 93; Griffin v. Auburn, 58 N.H. 121; Carter v. Jackson, 58 N.H. 156; Gordon v. B. M. Railroad, 58 N.H. 396. But how far a trial can justly and reasonably go upon
such issues is often a question of fact. The trial to which parties are entitled is not an endless one, nor one unreasonably protracted and exhausting. There may be a vast amount of evidence, relevant in a certain legal sense, but so unimportant, when compared with an abundance of better evidence easily available, as to be properly excluded. The parties being allowed, upon collateral issues, an equal range, amply sufficient for the purposes of justice, under the circumstances of the particular case, they are not necessarily entitled, as a matter of law, to go further in that direction. The evidence of the sums paid for flowage in the thirty-two other cases, if, as a matter of law, it was not incompetent, might be excluded on the ground that, as a matter of fact, it had so slight or remote a bearing on this case that it would be unjust or unreasonable to prolong and complicate the trial by such an investigation of those cases as would be necessary for obtaining from them any useful information. State v. B. M. Railroad, 58 N.H. 410, 412.
The Farmer case might be excluded on the same ground.
The price paid by Gault for his land would not be conclusively shown by his deed. If he had produced it, he could have testified that the consideration was not correctly stated in it. He might be required to produce it. There might be a reason for excluding his testimony as to the price, without the writing. But it being immaterial whether the deed was valid or not, and the question on this collateral subject being what he paid for the land which he and his grantor understood was sold, the production of the paper was not indispensable as a matter of law.
Exceptions overruled.
BINGHAM, J., did not sit: the others concurred.