
    Thomas Green v. John P. Winston.
    Pleadings — Value — Amount — Damages — Judgment — Jury — Supersedeas Bond — Attorney’s Fees.
    Allegations of value or of amount of damage shall not be considered as true by the failure to controvert them.
    The assessment of the value of rents cannot be done without proof.
    No attorney fee can be recovered in a suit on a supersedeas bond.
    APPEAL FROM - CIRCUIT COURT.
    February 3, 1863.
   Opinion of the Oourt by

Judge Williams:

. Winston obtained a judgment against Cox for land then in controversy.

Cox appeals from the judgment and, on executing bond, obtained a supersedeas, that judgment being affirmed.

Winston brought this suit against Cox and appellants, as his surety on the supersedeas bond, to recover $47.90 costs on the affirmance, for rents which he alleges to have been worth $500 after the execution of the bond, also $250 attorney’s fees.

For want of answer the court below rendered judgment against appellant for $547.09, without evidence, and without the intervention of a jury, to correct which this appeal is prosecuted.

“Allegations of value, or of amount of damage, shall not be considered as true by the failure to controvert them.” - Section 153, Civil Code.

The court manifestly erred in assessing the value of the rents without proof. Daniels v. Judah, 14 B. Mon. 316.

No attorney’s fee was embraced by the bond. This case is essentially different from the cases of Harris v. Ray, 15 B. Mon. 630; Francis v. Francis, 18 B. Mon. 60.

Wherefore, the judgment is reversed.  