Opinion
Decided August, 1878.
A verdict is not set aside on the ground that the prevailing party was allowed to open and close, unless it appears that injustice was done.
FOREIGN ATTACHMENT. Issue between the plaintiff and a claimant of a fund in the hands of the trustee. Two questions of fact were submitted to the jury, and answered by them in the negative, — first, whether the defendant owed the claimant a certain debt; and, second, whether the defendant had assigned the fund to the claimant, before it was attached, for the purpose of making a payment. The court allowed the plaintiff to open and close, on condition that he take the burden of proof; and the claimant excepted.
E. Fletcher, for the claimant, argued that the affirmative and the burden of proof were upon the claimant, and he had the right to open and close, and could not be required to give up this right in exchange for the plaintiff's assumption of the burden.
W. H. Heywood and Ray, for the plaintiff.
A verdict is not set aside on the ground that the prevailing party was allowed to open and close, unless it is shown that the other party has suffered actual injustice. Hardy v. Merrill, 56 N.H. 227, 234; Day v. Woodworth, 13 How. 363, 370; Doe v. Brayne, 5 M. G. S. 655; Bird v. Higginson, 2 A E. 160.
Judgment on the verdict.
DOE, C. J., did not sit.