3 Ind. 146 | Ind. | 1851
Assumpsit upon the common counts.
The following bill of particulars of the plaintiff’s claim was filed:
“ Hardin H. Wilcox v. Kreigh and Duncan, executors of the estate of Samuel A. Duncan, deceased.
1846. To money had and received,.......$1,000 00
To the price and value of certain promissory notes retained and collected by Duncan in his life-time, 1,000 00
To the price and value of two horses,....................... 200 00
To interest on the above account,. • 500 00
$2,700 00.”
The declaration charges the indebtedness to have accrued in the life-time of Samuel A. Duncan. Pleas — 1.
The plaintiff replied to the second, third, and fourth pleas that said Samuel A. Duncan, deceased, during his whole life, concealed from the knowledge of the said plaintiff the cause of action, &c.
The defendants rejoined that said Duncan did not conceal, &c.
This latter issue was formed with reference to section 113, p. 688, of the R. S. 1843.
On the trial, the plaintiff offered his first witness to prove that in 1842 Samuel A. Duncan admitted to him the existence of a part of the cause of action. The suit was commenced in 1849. The Court refused to hear the proof, and the defendant had judgment in his favor.
We can see no reason why the testimony of the witness should not have been heard. The general issue was in, and the plaintiff was bound to prove the existence of his cause of action; and the question upon the issue of concealment would have arisen afterwards. We see nothing showing incompetency on the part of the witness offered, and no such objection is made. Had the evidence offered been heard, the plaintiff might have followed with other that would have made out his case upon all the issues, but which, that offered having been rejected, it was not proper to present or offer to present. There might be cases, where legitimate evidence was offered
The judgment is reversed with costs. Cause remanded, &c.