The complaint as originally filed counted on a promissory note. It was subsequently amended by adding an additional count, declaring on a bond. The instrument relied upon for recovery was under seal, and the recovery had was necessarily upon the added count. To this count the defendant filed three pleas. The one numbered 3 was a special plea of set off or recoupment. To this plea, the plaintiff replied specially by way of confession and avoidance, and not otherwise. Issue was taken upon this replication; neither the sufficiency of plea 3 or-the replication was questioned.
I-Iad the plaintiff interposed a general replication by joinder of issue on the plea, undoubtedly' the burden would have been upon defendant to prove the facts alleged in the plea. But haying, as -we have shown, only interposed a special replication, in confession and avoidance, the defendant was under no duty to. offer proof of the facts alleged in his plea. The plaintiff by his replication confessed them. — Lee v. DeBardenlaben Coal & Iron Co., 102 Ala. 628, and authorities there cited.
That portion of the oral charge of the court, to which an exception was reserved, imposed upon the defendant the burden of establishing by evidence the facts alleged in the plea. This was erroneous. Error being shown, we cannot affirm that it was -without prejudice.
We entertain the opinion that the bond contained a waiver of exemptions as to personalty, therefore, there is no variance.
The written charge given at .the request- of plaintiff is not assigned as error; and those refused to the defendant are not insisted upon.
Reversed and remanded.