1854. MOORE v. ALLEN. had passed. And having no such notice, he was entitled, Nov. Term, Per Curiam.-The judgment is affirmed with costs. MOORE v. ALLEN and Others. In an action brought to contest the validity of a will which has been admitted to probate, on the ground of the incapacity of the testator, the burden of proof is on the plaintiff, and he has the right, under the R. S. 1852, to open and close the argument to the jury. The R. S. 1852 allow a party to be examined on behalf of his co-plaintiff or co-defendant as to any matter in which he is not jointly interested with such co-plaintiff or co-defendant. In a proceeding against the heirs and the executor of a testator, to contest the validity of his will, the interest of the heirs and executor is not a joint one. APPEAL from the Union Court of Common Pleas. DAVISON, J.-This was an action by John Moore against the executors and heirs at law of Joel Moore, deceased. The object of the proceeding was to contest the validity of an instrument purporting to be the last will of said decedent. The complaint alleges that the will had been proved in due form, and sets out the same, with its probate, at full length. It is averred that the instrument so admitted to probate is not the last will of Joel Moore, because, at the time he signed it, long prior thereto, and ever after, until his death, he was of unsound mind and memory, and incapable of making a will, &c. The defendants answered that the instrument was the last will of the decedent, and that when it was executed he was of sound and disposing Nov. Term, mind and memory, &c. The jury found for the defend1854. ants. A new trial was refused and judgment rendered on the verdict. MOORE V. ALLEN. The record contains a bill of exceptions. It shows that the plaintiff, at the proper time, moved the Court for permission to open and close the case. This motion was overruled and the cause opened and closed by the defendants. Under the R. S. 1843, this decision of the Court would have been correct; but a different rule of proceeding seems to be established by ss. 324 and 326, pp. 109-112, 2 R. S. 1852. These provisions enact, that "the party on whom rests the burden of the issues must first produce his evidence;" and that "in the argument, the party having the burden of the issue shall have the opening and close.” This rule applies to the case before us. The complaint admits the execution of the will and its probate; but alleges that Moore was of unsound mind and memory, and incapable of making a valid will. This allegation the plaintiff was bound to prove. And to make such proof constituted the burden of the issue. He was, therefore, entitled to open and close the case. The bill of exceptions further shows that James Allen and Andrew Witt, the subscribing witnesses to the will, also the executors therein named, and two of the defendants in this suit, were admitted over the plaintiff's objection, to give testimony in the cause. The ground of objection was that they were parties and interested. By section 302, p. 97,2 R. S., it is provided that "a party may be examined on behalf of his co-plaintiff or co-defendant, as to any matter in which he is not jointly interested with such co-plaintiff or co-defendant." Prior to this enactment the testimony of Allen and Witt would have been objectionable, because they were parties to the record; but the provision just quoted removes that disability. It then remains to be considered whether the executors were, in this proceeding, jointly interested with the legatees in the subject-matter of the suit. The interest of the former was such only as resulted from their fiduciary character. It was different from that of the legatees-theirs being a direct interest in the estate designated by the will. The prominent object of both may have been to sustain the will; yet they were severally and not jointly interested in the result. From this it would seem that the executors were not, in the sense of the statute, jointly interested with their co-defendants. It has been ruled that "an executor having no other interest than his fiduciary character imparts to him, is a competent witness to prove the will." McDaniel's Will, 2 J. J. Marsh. 331. The witnesses were, in our opinion, properly admitted. But the Court erred by refusing to permit the plaintiff to open and close; and for that error the judgment must be reversed. Per Curiam.-The judgment is reversed with costs. Cause remanded, &c. W. A. Bickle and O. P. Morton, for the appellant. C. H. Test, J. Yaryan and J. Perry, for the appellees. Nov. Term, 1854. MYERSON V. NEFF. MYERSON V. NEFF. Where premises are let for a specific term, the tenant is not entitled to a notice to quit. APPEAL from the Cass Circuit Court. HOVEY, J.-Neff sued Myerson before a justice of the peace, for occupying and detaining his store-rooms on lot number 50 in the town of Logansport. Myerson answered, denying the detainer, and setting up a tenancy from year to year ending on the 22d of May, and averring that he had not had legal notice to quit, and denying that any rent was due, or any damages suffered by the plaintiff. The justice rendered judgment in favor of Neff, and Myerson appealed to the Circuit Court. At the November term, 1853, the cause was submitted to that Court for trial, and judgment rendered in favor of Saturday, Nov. Term, 1854. MYERSON V. NEFF. Neff for the possession of the rooms, and 92 dollars and 1 cent. damages, with costs, &c. Myerson appealed. On the trial in the Circuit Court the appellant's counsel moved the Court to certify the facts, under s. 341, p. 115, 2 R. S. 1852. The following is the statement of the facts found by the Court, and the conclusions of law therefrom: "1. That at the time of the commencement of this suit, and for many months previous, the defendant, Myerson, was in possession of the premises named in the complaint, belonging to the said plaintiff, Neff, and by his permission and agreement. "2. That previous to his occupation under the present landlord, the plaintiff, the defendant had held from the plaintiff's grantor for two or three years, not as tenant from year to year, but as tenant for a year, determinable on each occasion on the first of May. "3. That the defendant's tenancy under said first landlord continued until the 22d day of May (inclusive), 1852, when, under the conveyance from said first landlord to the plaintiff, the defendant attorned to the plaintiff and became tenant of the premises for one year thereafter and no more, the same to expire on the 22d day of May (inclusive), 1853. "4. That after said 22d day of May, 1853, the plaintiff entered on said premises described, and demanded the surrender of the same to him, the plaintiff, for the plaintiff's own use, which the defendant wholly refused. "5. That in opposition to the said plaintiff's rights, the defendant has knowingly continued in occupation thereof to this time. "6. That by reason of the same, the plaintiff has sustained damages to the amount of 91 dollars and 2 cents. "7. And, therefore, as a legal consequence, that the plaintiff ought to have his possession and recover his aforesaid damages." Under these facts, the record presents no error. The counsel for the appellant make but one point. They refer to s. 144, p. 441, R. S. 1843, and insist that Nov. Term, 1854. LAWRIE V. they were entitled to three months' notice to quit. The facts do not show a tenancy from year to year under that section. The Court found that by the terms of the attornment, Myerson was to have possession of the premises one THE STATE. year and no more, and that the tenancy was to expire on the 22d day of May, 1853. In such cases, no notice to quit is necessary. R. S. 1843, s. 155, p. 817.-2 R. S. 1852, s. 5, p. 242. Per Curiam.-The judgment is affirmed, with 5 per cent. damages and costs. H. P. Biddle and B. W. Peters, for the appellant. LAWRIE V. THE STATE. In all cases of misdemeanors, where the indictments were found prior to APPEAL from the White Circuit Court. Saturday, HOVEY, J.-At the November term, 1852, of the White December 9. Circuit Court, Lawrie was indicted for malicious trespass, under the seventy-first section of the second article of the fifty-third chapter of the R. S. 1843. On the 16th day of May, 1853, he appeared, and moved to quash the indictment. The motion was overruled. He then pleaded not guilty, was tried by the Court by agreement, and fined 25 dollars. Lawrie brings the case here on appeal, and contends that the Court of Common Pleas of White county had exclusive jurisdiction over the case, under s. 14, p. 18, 2 R. S. 1852, which provides that the Courts of Common Pleas shall have "original jurisdiction" in cases of misdemeanors. Original jurisdiction does not mean exclusive jurisdiction. There would be no inconsistency in any number of Courts having original jurisdiction in any class |