
    George W. McDonald v. William B. Phillips.
    Trial — Open and Close of Argument.
    ■Where the burden of proof is not entirely upon defendant, plaintiff is entitled to open and close the argument.
    APPEAL FROM BATH 'CIRCUIT COURT.
    December 9, 1872.
   Opinion by

Judge Hardin :

According to the test provided by the Code of Practice for determining on whom the burden of proof is devolved by the pleadings, we are of the opinion that the onus was not entirely on the defendant; but it rested on the plaintiff as to his claim for the price of' thirteen and four-fifths barrels of corn, and this entitled the plaintiff to take precedence in presenting the evidence to the jury, and to the conclusion of the argument.

J. S. Hurt, for appellant.

Nesbett •& Gudgell, for appellee.

It seems to us. also; that the testimony of Farmer and others, offered to sustain the character of Cassity, was rightly rejected for the reason that the witnesses, failed to disclose such means of knowing the general character of Cassity as the rules of law required to render their testimony competent on that subject. Williams v. Hancock, 1 Bush. 368.

There was no' error in allowing plaintiff to remit part of his recovery; and the decision seems not to have been excessive or unauthorized by the pleadings and proof.

Wherefore the judgment is affirmed.  