
    J. Johnson vs. L. Wideman.
    An admission of the plaintiff’s case, by the defendant must be entered - upon the record, in order to entitle the latter to the reply under the sixty-second rule of Court.
    BEFORE EVANS, J., AT ABBEVILLE, SPRING TERM, 1838.
    This was an action on a note for one bunched dollars, and the defence set up was, that the note was a part of the price of a negro who was of bad character and utterly worthless; and that the plaintiff falsely represented him as of good, character well knowing such representations to be untrue. The defendant bad given notice of a discount, and the question was presented at the opening of the case, whether such a deceit could be the subject of a set-off. His Honor was of opinion that it might be given in evidence to defeat the action under the plea of the general issue, but thought it far from clear that the defendant, under bis discount, could recover damages for such deceit. Yet, as under the circumstances of this case, the effect of allowing it would be to put an end to the litigar tion, and could not operate injuriously to either party, the defendant was suffered to have the benefit of it, and the jury found a verdict in bis favor for fifteen dollars.
    Some days before the trial, the defendant’s attorney bad given notice to the plaintiff that be would admit, on the 'trial, the plaintiff’s cause of action'. The effect was to make the sole issue on the defence. The presiding Judge decided, that the defendant was entitled under the sixty-second rule of Court to begin and close bis case. If the defendant pleads in avoidance merely, and thereby admits the plaintiff’s cause of action, be was clearly entitled to the reply, as was decided in the case of Singleton ads. Mitchell, 1 N. & McC., 355. The rule of Court is, that where the defendant admits the plaintiff’s case, and takes upon himself the burthen of the proof, be shall begin and close. A mere verbal admission, which does not supersede the necessity of summoning witnesses to prove the plaintiff’s Cause of action, might not suffice; yet a written admission which cannot be retracted, with timely notice thereof, will give the defendant the same benefit as if the admission was made on the proceedings.
    The plaintiff appealed, and moved for a new trial on several grounds, but that principally relied on was, that although, the general issue was pleaded, the presiding Judge held that upon the defendant’s admitting the note on which the action was brought, be was entitled to begin and conclude by evidence and argument: and, that it was irregular for the plaintiff’s counsel to make remarks to the jury introductory to the plaintiff’s case.
    Burt, for the motion.
    
      Wardlaw and Perrin, contra.
   Evans, J.,

delivered the opinion of the Court.

This was an action of assumpsit on a note, to which the defendant pleaded the general issue. Some days before the trial, the defendant’s attorney bad given notice to the plaintiffs that be would admit on the trial the plaintiff’s cause of action. The defendant bad given notice of discount, and set up under this a defence that the note was given for a negro which the plaintiff bad sold him, knowing the negro to be of bad character and of no value. On the trial the defendant claimed the right to begin and end the case under the sixty-second rule of Court. I thought the rule admitted of that construction, and decided that the defendant was entitled to the reply. The case comes up to this Court on the question whether that decision was right. All the other grounds in the notice were abandoned. 'The rule of Court is as follows, viz: “ On all rules to show cause, the party called shall begin and end bis cause, and on all special matters either springing out of a cause or issue, the actor or party submitting a-point to the Court, shall in like manner begin and close; and so shall a defendant who admits the plaintiff’s case, and takes upon himself the burthen of the proof, have the like privilege.”

It was decided in the case of Gray vs. Cotterall, 1 Hill, 38, that the defendant was not entitled to this privilege when be admitted the plaintiff’s cause of action at-the trial. It seemed to me, as the words were comprehensive enough to bear the interpretation, there could be no objection to allowing this privilege, where timely notice bad been given. On a full consideration, the majority of this Court are of opinion, that the rule must be so construed as to allow the privilege to those defendants only, who admit the plaintiff’s case on the record; the issue must be the test of admission or denial; and in this construction I concur. Rules of practice should be as free from doubt and ambiguity as possible. To admit other evidence of admission than the issues, would leave many questions which the rule does not provide for, uncertain —as whether the admission should be written or verbal— what was the extent of it — and whether sufficient notice had been given.

The motion for a new trial is granted.  