Colley's v. Sheppard's

Citations

• 31 Va. 312

Syllabus

<p>In an action of debt upon a bond by C’s administrator against S’s administrator, proferí of the bond is excused on the ground that it was lost by accident. S’s administrator pleads payment, and special pleas in which he avers that the bond was not lost or destroyed by accident, but was destroyed by the obligee in her lifetime, with the intention and for the purpose of releasing S from the payment of the debt, and this he is ready to verify ; and issues were made up on the pleas. On the trial of the cause the defendant insists the plaintiff should first prove to the satisfaction of the court the original existence of the . bond and its loss, and it was agreed that all the evidence in the cause shall be heard, and the defendant may move to exclude it ,• and on his motion all the evidence was excluded—Held :</p> <p>1. Every pleading is taken to confess such traversable matter on the other side as it does not deny. The pleas, therefore, confess the original existence of the bond as described in the declaration and its destruction. There was, therefore, no necessity on the plaintiff to prove to the satisfaction of the court the original existence and loss of the bond before receiving testimony as to its contents.</p> <p>2. If the pleas put in issue the loss of the bond, then that issue must be tried by the jury; and if there was evidence introduced before the jury bearing on the question of the loss of the bond, it was for the jury to decide upon the sufficiency of the evidence to establish the loss; and it was error in the court to exclude it.</p> <p>3. If it was incumbent on the plaintiff to prove the original existence and the loss of the bond, before proving its contents, the evidence was sufficient in this case.</p>