Braley v. Burnham

The opinion of the court was delivered by Powers, J. No objection to the replication by way of demurrer or otherwise, was taken in the court below, but the trial proceeded •upon the ground that it put in issue the material averment in the plea that the intestate, on the 24th of May, 1869, had a list, &c. We think the grand list, made in proper form and duly authenticated, is all the evidence required of the defendant to support the issue made by a traverse of his averment that the tax-payer had a list. If the plaintiff would put the defendant to further proof as to the legality and validity of such listing of the inteslate, he should have replied specially to that averment, setting forth the failure of the listers to give the notice required by statute. The making up of a grand list, is the work of sworn officers; and the list when made carries on its face the presumption of regularity in the steps leading to its execution. The evidence offered by the defendant, was outside the issue, as the parties made it; and, as under the pleadings the plaintiff could not have proved the notice, [721] he cannot avail himself of the defendant’s proof, because it was impertinent. There was no waiver or abandonment of the issue made by the pleadings, and no consent by counsel, or by the court, that the issue so made should be waived or superceded in view of the evidence that was offered. We discover no error in the trial below, therefore Judgment affirmed.