Howell v. Williamson

CHILTON, J. This was an action of debt on a guardian’s bond. The declaration set out the bond and assigned several breaches, to which defendant replied, that he had performed the conditions as required by law of him, as guardian, &c. Upon the trial, the plaintiff read the bond, and closed his testimony. The defendant offered no proof, and insisted the plaintiff’ had not made out his case. The court [422] in effect so charged the jury. Whereupon the plaintiff, by leave of the court, proved, that a slave of the value of eight hundred dollars, was received by the defendant, as guardian of the plaintiff and there rested. The court charged, that the receipt of the slave was not of itself evidence of a breach of defendant’s bond, such a receipt being a part of his duty as guardian. To the ruling of the court the plaintiff excepted, and presents the same for our revision. 1. It is insisted that the burden of proof of this issue was thrown upon the defendant, inasmuch as the plea of performance is an affirmative one ; and we are referred to the Case of Edmunds v. Edmunds, 1 Ala. 401, as an authority for the position. That was an action of debt on a forthcoming bond, conditioned for the delivery of certain slaves to the sheriff, on a day and at a place named in the condition. The plea was, that the defendant had performed the condition of the bond, that is, had delivered the slave as he- had bound himself to do, and this court held, that as the knowledge of the performance of the act set up in discharge of the bond rested with the defendant, he was bound to prove it. The case at bar is entirely dissimilar from that above referred to. Here, the general plea of performance by .the guardian amounts to nothing more than a denial of the breaches ¡assigned. The onus of proof does not so much depend upon rthe form, as upon the nature, substance and effect of the issue to be proved. Thus it has been held, in an action of covenant for not repairing, the plaintiff assigned for breach, that the defendant did not repair, but suffered the premises to be ruinous. The defendant pleaded that he did repair, and did not suffer the premises to be ruinous; it was held the plaintiff should begin. 1 Greenl. Ev. 85; 1 Phil. & Am. Ev. 827; Soward v. Leggett, 7 C. & P. 613. So in this case, we think it clear the plaintiff was bound to prove some of the breaches assigned, and that the bare production of the bond was not sufficient to cast the burden of proof on the defendant. See State v. Milton, 8 Miss. R. 417. 2. But the plaintiff having shown that the defendant received property as guardian, to which the plaintiff was entitled, and the value of such property, the burden of proof was shifted in respect of such property upon the defendant. To [423] require the plaintiff to go further, would be to require him to prove a negative, viz : that the property had not been disposed of according to law. That it was legally disposed of isa fact presumed to be within the knowledge of the defendant, and which he must consequently show to the court. Prima facie, he stands chargeable with the value of the property, which he has received as guardian, and in order to discharge himself, must show that he has made a proper disposition of it. The plaintiff having shown that the slave came into the defendant’s possession, the law presumes a continuation of the possession, and thus fixes a prima facie liability on the defendant to account for him. By resting the case, without further proof, the defendant virtually says to the plaintiff, I have your slave in my possession, which I received as your guardian, worth $800, and which I refuse to surrender to you ^although you have have sued me, but you must show that my detention of him is a breach of my duty as guardian. It is a sufficient response by the plaintiff, that the breach of du„ty, and consequently of the guardian’s bond, is a legal conclusion from the facts admitted. The circuit judge having charged the law otherwise, the. • judgment is reversed and the cause remanded.