Adm'rs. of Mardis v. Smith

ORMOND, J. — No objection is taken in the argument, submitted by the plaintiff’s counsel, to the declaration; and on looking into it, we do not perceive any objection to it. The pleas which were demurred to, are not only destitute of form, but are substantially defective. They do not, either of them, present any fact in such a manner, that issue could be [384] taken on them. This, indeed, is not controverted; but is ascribed to the loose manner of pleading common in the country. There is no agreement in the. record, on the part of the • plaintiffs, to waive any right; but, on the contrary, from his interposing a demurrer, we must’ intend he designed to insist on all his rights; and, according to law, the pleas cannot be supported. • The refusal of the Court to permit the defendant to plead over, is matter resting in the sound discretion of the Court, and cannot be revised here. The offer to prove, under the general issue, the failure on the part of the plaintiff, to present his claim' to the administrators within eighteen months after the grant of letters of administration, and advertisement according to law, is a question of ■some novelty. The act under which this permission was claimed, is to the following effect; “Executors, administrators and guardians shall not be required to plead specially to any action or suit at law, brought against them in their said capacity; but may, under the general issue, give any special matter in evidence.” [Aik. Dig. 184.] The object of this law was, doubtless, to give greater facilities to those who were, by law, required to defend suits in outer droit, and whom the law presumes not to be so conversant with the facts, as the original actor in the transaction; and' therefore,-more liable to be mistaken in the attempt to present them in the form of a plea. Thus, in the case cited from 1 Stewart 473, the action was covenant; and the Court permitted the administrator to give in evidence a new contract, under the plea of covenants performed, as there was no general issue, properly speaking, in that action. By the aid of this statute, an executor cannot well be surprised by the introduction of evidence of which he had no knowledge before, or knew imperfectly ; but, under the general issue, may shape his defence according to the exigency of the case. But this reasoning can have no application to facts peculiarly within his knowledge; as must be the case, when the de-fence is a failure of presentation of the claim to him within eighteen months after making advertisement. But that is not [385] all; when the plea of non-claim is interposed, if the plaintiff does not reply some matter specially in avoidance, the affirmative lies with him; as the defendant cannot be called on to prove a negative, as was held by this Court in the case of Evans vs. Norris, Stodder & Co. 1 Ala. Rep. N. S. 511. To give the defendant, therefore, the benefit of the plea of non-claim, under the general issue, would, in effect, be requiring the plaintiff to prove presentation of his claim, as a part of his cáse. We think it quite clear, that the design of the statute, was not to authorize this class of defendants to demand additional proof of the plaintiffs, beyond, or out of,, the issue tendered ; but merely permit them to give matter'in evidence under the general issue, which, according to the rules of pleading, those defending suits in their own right, would be required to plead specially. It follows, therefore, that the Court did not err in the refusal to permit the evidence to be given; under the general issue ; and its judgment is therefore affirmed.