Governor for Liggatt v. Withers

delivered the opinion of the Court.

This Court is of opinion, that the custom existing among the inspectors of tobacco in the town of Lynch-burg, connected with evidence of knowledge and acquiescence on the part of the relator, as set forth in the bill of exceptions taken to the admission of testimony, would have been a good defence to the action, if the same had been relied on by a special plea; and under the circumstances of this case and the conduct of the parties at the previous trial, it would have been proper, and still will be proper, to give the defendant leave, if asked for, to make such defence by pleading the same specially. Yet under the issue joined in this case, it was not competent for the defendant to rely on matter, which went to excuse the principal in the bond from performing a duty prescribed by law, and a failure to perform which, constituted prima facie, a breach of the condition of his bond. It therefore seems to the *28Court here that the Circuit Superior Court erred in per-«fitting the defendant to introduce the proof of said custom in said bill of exceptions set forth, when objected to by the plaintiff. Therefore it is considered tjjat judgment be reversed with costs, and the verdict set aside; and the cause is remanded for a new trial, on -which, provided the issue remains unchanged, the evidence in said bill of exceptions mentioned, if again offered and objected to, is not to be permitted to go to the jury.