Evans v. . Norris

2 N.C. 411

• Court: Superior Court of North Carolina
• Decided: October 5, 1796
• Status: Published

Opinions

The account against the plaintiff cannot be admitted to prove the plea of payment. The defendant should have pleaded the general issue, with a notice of set-off; then the plaintiff would have been made acquainted with the particular items, and might have prepared himself with evidence to contest them. If we allow an account to be proved without being pleaded in bar, or notice of set-off given to the plaintiff, he must necessarily be unprepared to contest it, however erroneous it may be. If such accounts by rules of the common law were adducible by the common law to prove the plea of payment, it was unnecessary to have made the acts for setting off mutual debts and accounts against each other. The account was rejected. The defendant then proved the intestate had purchased a house of him, and agreed to give £ 300 for it, to be paid by three yearly installments, one of which payments was due before the institution of this action, and that he had retained £ 100 of the intestate's estate in his hands to satisfy it.

Mr. Hay urged that a retainer could not be given in evidence unless it had been pleaded.

Mr. Taylor, e contra, insisted that a retainer may be given in evidence under the plea of plene administravit, and cited Esp., 249.