63 Miss. 357 | Miss. | 1885
delivered the opinion of the court.
The judgment must be affirmed. "We find no error in reference to the instructions, and upon the testimony, it cannot be said that the verdict is manifestly wrong.
If the assessor failed to deliver the assessment roll to the clerk of the board of supervisors on or before the first day of June, as required by the laws then in force, this irregularity was covered by the act entitled an act to legalize the return of assessment rolls and to extend the time of returning the same, approved July 31, 1875. Acts special session, 1875, 10. Before the passage of this act the assessment roll was received and approved by the board of supervisors, and the assessment was thereby rendered valid. The authority of the legislature to enact such statute is not an open question in this State. Fanning v. Funches, 60 Miss. 541 ; Vaughn v. Swayzie, 56 Ib. 704; Nevin v. Baily, 62 Ib. 433.
The ruling of the court which denied appellants the opening and conclusion of the argument to the jury was right. The advantage sought to be gained by appellants in this respect was not a mere privilege to be disposed of in the discretion of the court, but a matter of right regulated by law. Proffatt on Jury Trial, §§ 213, 222 ; Judge v. Stone, 44 N. H. 593 ; Davis v. Mason, 4 Pick. 156.
Looking to the substance and not to the mere form of the pleadings, the party on whom the onus probandi lies, as shown by the record, whether plaintiff or defendant, is entitled of right to begin and reply. Practical rules, approved by authority, for ascertaining upon whom is the burden of proof, are, first, to consider which party would succeed if no evidence were offered by either side; and, secondly, to examine what would be the effect of striking out of the record the allegation to be proved. The onus must be on the party who under such tests would fail in the suit. 1 Greenleaf
If the record contains several issues and the plaintiff holds the affirmative in either, or would be obliged to produce any proof to establish his claim or demand, it would be error to deny him the right to open and close the argument to the jury. Proffatt on Jury Trial, §§ 212, 213, 222; Judge v. Stone, 44 N. H. 593 ; Davis v. Mason, 4 Pick. 156 ; Montg. So. R. R. Co, v. Sayre, 72 Ala, 443.
Affirmed.
