Turner v. Knell

Supreme Court of Maryland
Turner v. Knell, 24 Md. 55 (Md. 1866)
1866 Md. LEXIS 3
Weisel

Turner v. Knell

Opinion of the Court

Weisel, J.,

delivered the opinion of this Court.

We concur with the learned Judge of the Circuit Court for Baltimore City, from whose decree this appeal has been taken, in his conclusions as to the law and the facts in this case. The answer of a defendant to a bill of discovery, if responsive, is evidence for the defendant, unless overcome by the testimony of two witnesses, or one witness with corroborating circumstances. The answers in this case are responsive, and there is no sufficient countervailing proof. The evidence has been well scanned and analyzed by the Court below in its opinion, and we do not dissent from the views therein taken of it.

The appellant relied much upon the ground that the circumstances stated by the appellee in his third amended answer as to the mode or manner in which the complain*61ant received the benefit of the discount in the Western Bank, were new matter set up in avoidance, and therefore required proof to support them from the defendant. We do not embrace this view. All the matter stated referred to one transaction — the enuring of the proceeds of the discount to the use and benefit of the appellant — and was responsive as to the subject really in controversy between the parties. The explanatory facts, showing how he received the proceeds, were necessary parts of a full answer, and for the want of which exceptions 'were filed to the first answer. They are not matter in avoidance, but of explanation or detail, and necessary to the full answer sought by the exceptions. The distinction between matter of this kind, and matters strictly in avoidance, is well taken in Cooper & Haines vs. Tappan, 9 Wiscon. R. 366, 367. See also Glenn vs. Grover, 3 Md. Rep., 226.

(Decided February 21, 1866.)

The defendant below should have answered fully and particularly at first. The circumstance that his answers were twice ruled insufficient, with some other facts in the case of a mysterious nature, are calculated to throw doubt upon the justice of his cause; but having been made a witness by the bill of discovery, and the matter of his answers being, as has been stated, fully responsive to the bill, without being met by sufficient countervailing proof, the complainant must abide by the answer.

The decree below will, therefore, be affirmed, with costs to the appellee.

Decree affirmed toith costs.

Reference

Full Case Name
Lewis Turner v. Henry Knell
Status
Published