State ex rel. Brown v. Duvall

Bryan, J., delivered the opinion of the Court. This suit was brought on a bond alleged to have been executed by Sarah A. Brown, -as guardian of Waite E. Brown, with George W. Duvall and Edward C. Reilly as sureties. Mrs. Brown was returned non est; and Duvall died after the commencement of the suit. The narr. set forth the bond and alleged breaches. Reilly, the remaining defendant, pleaded performance and limitations. The plaintiff offered in evidence the bond, and evidence tending to prove the indebtedness-of the guardian to her ward; and then closed his case. Thereupon the defendant prayed the Court to instruct the jury that there was ho evidence legally sufficient to enable the plaintiff to recover. The Court granted the prayer and the plaintiff excepted. The verdict and judgment being in favor of the defendant, the plaintiff appealed. The ground of the prayer seems to be the supposed insufficiency of the proof of the bond. The execution of the bond was not put in issue by the pleadings. It could not be denied except by the plea of non est factum ; and in this case it could'not have been pleaded except under oath. Code, Article 75, section 11. The pleas admit the execution of the bond and set up matter in defence, to-wit, performance and discharge by the Statute of Limitations. They were in confession and avoidance, and imposed on the defendant the necessity of proving the matter alleged. The bond being admitted in pleading, the evidence which was offered tending to prove a breach of it was sufficient to take the case to the jury. The plaintiff having closed his case, it was in the discretion of the Court whether he should be permitted to reopen it. Its refusal to permit it cannot be assigned as error. Therefore the second, third, [125] fourth and fifth exceptions were not well taken. For error in first exception the judgment must be reversed. (Decided March 26th, 1896). Judgment reversed and a new trial awarded.