
    James Wigglesworth vs. Thomas G. Atkins.
    In order to entitle a defendant, ón the trial of an action in the court of common pleas, to open and close the case, according to the rule of that court, he must admit the facts, and not generally that the plaintiff has a prima facie case.
    An admission by the defendant, to obtain the right to open and close, under the rule of the court of common pleas, must be filed before the trial commences; and it is too late to do so, after the writ and declaration, and specification of defence, have been read to the jury.
    This was an action of assumpsit to recover for the work and labor of the plaintiff on the defendant’s farm. The defendant specified in defence, that the work and labor done for him by the plaintiff, if any, was performed under a special and entire contract, by which the plaintiff undertook to work for the defendant eight months, (embracing the period during which the labor sued for was performed,) which was broken by the plaintiff, and for the breach of which the defendant specified damages to an amount exceeding the services rendered.
    At the trial, before Wells, C. J., in the court of common pleas, after the counsel for the plaintiff had proceeded in the opening of the case, so far as to read to the jury the writ and declaration and specification of defence, a suggestion was made by the judge, as to one item of charge in the plaintiff’s bill of particulars, which the plaintiff thereupon abandoned, and the defendant then filed the following admission of the plaintiff’s claim : — “In this case, the defendant, to obtain the benefit of the forty-first rule of this court, admits that the plaintiff can make out a primd facie case for the cause of action set forth in his writ; and thereupon prays to be allowed to open and close the case to the jury, relying on the specific matter in defence heretofore filed by him.”
    The defendant contended that he was thereby entitled to the opening and close of the case; but the judge ruled otherwise, and the trial proceeded. The plaintiff having obtained a verdict, the defendant excepted.
    
      J G. Park, for the defendant.
    
      H. E. Smith, for the plaintiff, was stopped by the court.
   By the Court.

The opinions of the judges of the court of common pleas, as to the construction of the rules of that court, though entitled to great consideration, are nevertheless subject to revision by this court. In the present case, however, we are satisfied that the ruling was right. The admission must be made before the trial commences. Here it was not filed until afterwards. The rule requires, also, that the defendant should admit the facts, and not generally that the plaintiff' has a primd facie case.

Exceptions overruled.  