Greer v. . Herren

6 S.E. 257, 99 N.C. 492

• Court: Supreme Court of North Carolina
• Decided: February 5, 1888
• Status: Published

Opinion

Merrimon, J.,

(after stating the case). It must be taken that there was evidence given on the trial to prove that the promise to pay the debt, as alleged, was made within three years next before the action began. A material part of the plaintiffs’ alleged cause of action was, that the promise was .'so made. The case settled on appeal states, that they produced “ evidence tending to prove the truth of their allegations ” — this statement is general, and, fairly interpreted, applies to all the material allegations. Moreover, so far as appears, no objection was made that there was no such evidence.

The answer simply denies the material allegations of the •complaint, and pleads, as further defenses, the defendant’s discharge in bankruptcy and the statute of limitations. There is no allegation that the consideration of the alleged promise was fraudulent, or otherwise than as alleged in the • complaint. Nor, particularly, was it alleged by the defend.ant, in his answer, that he had paid the debt, which was the consideration of the promise, or secured the payment of the same by a mortgage of property, or other valuable thing.

Therefore, the evidence offered by the defendant, as to a suggested agreement and mortgage, was not pertinent or material to any alleged defense, and should have been excluded. The defendant must not only have a defense — he must plead it, else the Court will not take notice of it. There must be allegata et probata. McLaurin v. Conly, 90 N. C., 50, and cases there cited.

As to the special instruction asked for by the defendant, there was no alleged defense to which it was applicable, and if there had been, so far as appears, there was no evidence produced that warranted it. The Court therefore properly refused to give it.

Judgment affirmed.