Carrow v. . Adams

65 N.C. 32

• Court: Supreme Court of North Carolina
• Decided: January 5, 1871
• Status: Published

Opinion

Dick, J.

The allegations in complainants’ bill are not supported by proofs, or admitted in the answer.

The complainant alleges that the note which he seeks to have cancelled was given without any consideration, and was intended to benefit tbe defendant by enabling him to secure certain cotton from seizure, &c.

The answer alleges that the defendant sold said cotton to complainant and the said note was given in part satisfaction for the purchase money; and the non-delivery of the cotton was caused by the default of complainant, &c.

The complainant, by replying to the answer, could have introduced proofs in support of his allegations. As no replication was taken, the defendant had no opportunity of verifying his allegations and according to the rules of equity pleading, his answer must be taken as true at the hearing of the cause.

If any equity different from that alleged in the bill was disclosed in the answer, the complainant ought to have amended his bill to meet such state of facts, and to obtain the appropriate relief. ■

There is error in the ruling of his Honor in the Court below.

Per Curiam. Bill dismissed.