The Court decided, as in the case of Phelps & Al. vs. Hartwell, (ante, p. 71.) that the appellee, being the party who wished to establish the instrument, as a will, and having the affirmative, was to open and close.
Note. — In the case of Phelps & Al. vs. Hartwell, above mentioned, the appellee began the pleadings by affirming the sanity. Quaere, if that be not the most correct mode ? The appellant having, m the reasons of appeal, filed in the case, denied the sanity, it seems to be no better than a needless tautology to repeat the same thing in his plea, and before the other party has answered the denial of sanity, or the affirmation of insanity, whatever it may be called.
[Buckminster & Al. vs. Perry, 4 Mass. 593. — Hubbard vs. Hubbard, 6 Mass. 397.— Wh ere all the issues were, whether A. B. was of sound memory, the soundness of memory "being alleged by the defendant, it was held that he was entitled to begin Tirrell vs. Holt, 1 Barnard, 13. — 1 Vin. Ab. Ev. (S. a. 7) 7. — 1 Stark. 362. — Ed ]