V. PURSELL. May Term, after that date, an original power of attorney, similar to 1855. one then held by the said Pursell, under which he was then MCCLURE acting as their agent, showing his right, in their names, to execute a deed granting to Mc Clure the right to use and vend the said new and useful improvement within said counties; yet that the said Converse and Burdge have not furnished or offered to furnish such original power of attorney. To the fourth plea there was no replication; but to the second plea the plaintiff replied "that Converse and Burdge had good right and authority to vend to the defendant the right to use the new and useful improvement in said plea mentioned." The Court, by consent, tried the cause, and found for the plaintiff 369 dollars. Motion for a new trial denied, and judgment for the plaintiff. The record contains a bill of exceptions, which shows that the plaintiff, to maintain the issues on his part, gave in evidence the two promissory notes and the respective assignments thereon, "and upon this evidence rested his case." That thereupon the defendant introduced an instrument executed by Converse and Burdge, whereby they agreed to furnish him, within one year from the said 8th of December, 1849, an original power of attorney (as described in the fourth plea) as a muniment of his title; which power was to be furnished before payment of said notes was demanded, &c. That Pratt, a witness for the defendant, was then produced, who testified that he drew the notes and the above instrument; that the notes sued on are the same therein referred to; that their execution and that of the instrument were concurrent acts; and that he saw them executed. That "upon this evidence the defendant rested his defence;" whereupon the plaintiff introduced B. W. Peters, his attorney, who stated that the defendant, during the year prior to the commencement of this suit, had repeatedly offered to give him wagons in payment of one of the notes, and made no objection to paying it. That of the other note no mention was made during that time by either party. The witness also testi fied that the defendant expressed himself fully satisfied May Term, with his bargain in the machine. That "this rebutting testimony closed the evidence in the case." The appellant contends that upon his second plea he should have succeeded, because the issue made on that plea was not proved, and the burden of proving it rested on the plaintiff; but the appellee insists that though the evidence, as it appears in the transcript, may be insufficient to support the finding of the Court, still the judgment should be affirmed, because the record does not show that it contains all the evidence. Rule 30 of the Supreme Court relates to this subject; but the cause was tried in the Court below prior to the 1st of June, 1853, when it took effect. Hence the point made by the appellee must be considered without reference to that rule. It will be seen that after the introduction of the notes and assignments thereon, the record states that "upon this evidence the plaintiff rested his case." Also at the conclusion of the testimony for the defence, it alleges that "upon this evidence the defendant rested his defence." The record then sets forth certain evidence given by the plaintiff, and avers that "this rebutting testimony closed the evidence in the case." These statements, when taken together, seem to repel any presumption that evidence, other than that contained in the record, was given on the trial. The above replication takes issue only upon the last averment in the plea. It merely affirms that Converse and Burdge had "good right and authority to vend the improvement," thereby admitting that the sale and conveyance to the defendant was the consideration of the notes; because it is a principle applicable to all pleading, that "the omission by either party to traverse any material fact alleged by his adversary, is, in effect, an admission of it." 1 Chitty Pl. 623.-Gould Pl., c. 3, s. 167. In the present case, the affirmative of the issue made by the plaintiff's replication is not sustained by the evidence. The defendant may have offered to pay one of the notes and expressed himself satisfied with his bargain; all that, however, falls 1855. MCCLURE V. PURSELL. May Term, short of proof that the vendors had obtained letters patent, or had good right to vend the improvement. 1855. MCCLURE V. PURSELL. But upon which of the parties devolved the onus probandi? Mr. Greenleaf says, that the rule which governs in the production of evidence is, "that the obligation of proving any fact lies upon the party who, substantially, asserts the affirmative of the issue." 1 Greenl. Ev., s. 74. Again, it is said, "that the party who alleges the affirmative of any proposition shall prove it." 1 Stark. Ev. 376. To this rule, it is true, there are exceptions, but none of them apply to the present inquiry. 1 Greenl. Ev., ss. 78, 80. We are, therefore, of opinion that under the issue taken upon the second plea, the plaintiff was bound to prove affirmatively the averment in his replication, and having failed to support that averment with sufficient proof, the defendant was entitled to a judgment. Another ground is assumed by the appellant. No issue was taken on the fourth plea. It remains undisposed of and unanswered. That plea, no doubt, presented a material question in the case. If the vendors agreed not to enforce payment of the notes until they had furnished the defendant with the "original power of attorney" described in the plea, and have failed in the performance of their agreement in that respect, the plaintiff had no right to recover. But the defence set up by this plea, it is said, could have been made under the general issue, and the want of an issue on the plea, though erroneous, should not be allowed to reverse the judgment. We concur in that opinion. This Court has repeatedly decided that “a judgment for the plaintiff, in a suit tried on the general issue, will not be reversed merely because a demurrer to a special plea was erroneously sustained, if the matter specially pleaded was admissible under the general issue.” Shanklin v. Cooper, 8 Blackf. 41.—Fairfield v. Browning, 1 Ind. R. 322. These cases, though not strictly analogous to the one before us, involve a principle which may be aptly applied to the point under consideration. The defendant has had "an opportunity to introduce the same evidence under the general issue, that he could have intro duced under the fourth plea." Indeed, the record shows that evidence tending to support that defence was given on the trial. The testimony, however, being insufficient to support the finding of the Court, a new trial should have been granted. Per Curiam.-The judgment is reversed with costs. D. D. Pratt and S. C. Taber, for the appellant. May Term, 1855. Cook V. GRAY. Cook v. GRAY. A. stipulated to deliver to B. fifty hogs at any time between the 10th and 20th of November that B. might choose to call for them. Held, that a demand by B. on the 19th for the delivery of the hogs on the 20th of November was not sufficient under the contract. Section 787, p. 205, 2 R. S. 1852, applies only to statutory time and not to the computation of time in the case of ordinary contracts. APPEAL from the Rush Court of Common Pleas. DAVISON, J.-The complaint in this case states that the parties had entered into a written contract, whereby Gray stipulated to deliver to Cook fifty head of hogs, at any time between the 10th and 20th of November, 1852, that he might choose to call for them. Averment, that Cook demanded the hogs on the 17th of that month, but Gray refused to deliver them, &c. The answer denies a demand of the hogs on the 17th of November, or at any other time between the above dates, and avers that Cook called on Gray on the 19th of November, and requested him to deliver them on the 20th of said month, which Gray refused, &c. To this Cook replied, that he did call on Gray on the 19th of November, and request him to deliver the hogs on Wednesday, May Term, the 20th of the same month; and he agreed to do so; but when the 20th arrived he failed and refused, &c. 1855. Cook V. GRAY. Gray demurred to the replication, and for cause alleged that the agreement set up in the reply was a departure from the complaint, and inconsistent therewith, in this: The complaint sets forth a contract for the delivery of the hogs between the 10th and 20th of November, when, in the reply, it is averred that Gray stipulated for the delivery of the same hogs on the 20th of November. The demurrer was overruled and judgment given for the plaintiff below. If the Whether the averment in the replication was or was not a departure in pleading, must depend upon the solution of another inquiry, viz., was the demand on the 19th of November, to deliver the hogs on the 20th of that month, within the provisions of the original contract? phrase "between the 10th and 20th," under a proper exposition of the agreement sued on, includes the day last named, the ruling of the Court must be adjudged correct; because the contract set up in the replication would, in that case, create no additional obligation, and may therefore be rejected as surplusage. The code provides that the time within which an act is to be done, as therein provided, shall be computed by excluding the first day and including the last. 2 R. S. 205. But this, as a rule of computation, relates exclusively to statutory time, and does not apply to ordinary contracts. We have not been able to find any authority bearing directly upon the point under consideration. It has been said, that "when time is to be computed from and after a certain day, that day is to be excluded; unless it appears that a different computation was intended." 5 Johns. R. 232.-3 Conn. 19. But other authorities say that there is no general rule on the subject; that such computation must be governed by the reason of the thing and the circumstances of the case. Pugh v. The Duke of Leeds, Cowp. 714. There is, indeed, no rule strictly applicable to the case before us, save that which points to the terms of the contract as understood by the parties. The word |