The right of a party to open and close the argu ment of the cause, on trial before a jury, has been deemed of sufficient importance to authorize the filing of a bill of exceptions, where the presiding judge has been supposed to err in his ruling on the point. Davis v. Mason, 4 Pick. 156.
The trial in the present case took place in the court of common pleas, and of course under the rules of practice prescribed by that court. The 55th rule of that court on the subject provides, “ that the party holding the affirmative shall open and close.” The first inquiry is, whether this rule was violated. Suppose- the specification of defence to have been presented in the form of special pleading, how would the issue be presented to the jury ? The defendant, admitting the covenant declared on, sets forth a discharge under the insolvent law, taking upon himself the affirmative, if the plaintiff had taken issue upon this averment of a discharge But the plaintiff does not do this. On the contrary, he admits the discharge, but avoids it by alleging that the defendant committed certain frauds which invalidate it; and upon this allegation the issue is joined. The whole inquiry is reduced to this; has the defendant committed the alleged fraudulent acts? The plaintiff avers that these fraud *66ulent acts were committed, and the defendant denies them Upon whom then is the affirmative ? Clearly upon the plaintiff; and he is therefore entitled to open and close.
If this be so under the general rule of the court of common pleas, before referred to, it is then to be considered whether the new rule of that court, adopted in September 1841, would entitle the defendant to open and close. That rule is in these words: “ Whenever the defendant in any action shall file a statement in writing, pursuant to the 41st rule of this court, of any specific and substantive matter of discharge, or avoidance of the action, he may, at any time before trial, file also in writing an admission of all the facts necessary to be proved by the plaintiff in his opening on the general issue, and such defendant shall then be entitled to open and close, unless the plaintiff shall file in writing an admission of all the material facts alleged in the defendant’s statement, and shall, by way of reply, state some specific matter in discharge or avoidance thereof.” It seems to us that the proper application of this rule would not at all differ the result from that already stated. The plaintiff, by the form of his specification denying the validity of the discharge set up by the defendant, by reason of certain fraudulent acts of the defendant, does admit the existence of the discharge alleged in the defendant’s specification; and this is admitting all the material facts alleged in the statement or specification of the defendant, but replying to it by alleging a specific matter in avoidance thereof, and thus again taking the burden wholly on himself. The result would be, therefore, that under this rule the plaintiff had the right to open and close.
We have considered that this case was to be governed by the rules of the court of common pleas, and have therefore given full effect to the new rule above stated. It may be proper to remark, that no such rule has been adopted or is practised upon in the supreme judicial court. It was long since held here, that in all cases' where the general issue was pleaded and joined by the parties, the plaintiff had the right to open and close. This rule has been strictly applied. Ayer v. Austin, 6 Pick. 225 By St. 1836, c. 273, “no other plea in bar” can be filed, but *67the general issue. Of course, in all cases, the plaintiff must have the right to open and close. This court has in practice conformed to this mode of conducting jury trials.
Exceptions overruled.