Mann v. Bruce

5 N.J. Eq. 413

• Court: New Jersey Court of Chancery
• Decided: June 15, 1846
• Status: Published

Opinion

The Chancellor.

The mortgage is assigned to Abijah Mann, jun., (the.complainant,) his heirs and assigns, without stating him to be receiver. The answer does not set up that he is receiver ; but admits the facts stated in the bill, except as to the assignments, of which.the defendant says he is ignorant, and leaves the complainant to his proof thereof.

A defence not raised by the pleadings cannot be raised by proofs.

It is said that the defendants might have a good defence against the North American Trust and Banking Company. If they had,“ they should have set up the defence in the answer, and that the complainant was only receiver; or, if they did not know, when the answer was filed, that the complainant was receiver only, they should have asked to amend the answer for the purpose of showing that, and of setting up their defence.

Under the form of the assignment to the complainant, I apprehend that if the fact of his being receiver only had been set up in the answer, it would have put no difficulty in the way of a decree on the bill as it stands, unless the defendants had also set up a defence against the company.

As to parties, if it had appeared by the bill that the complainant was receiver only, it would not have been necessary to make the creditors and stockholders of the company parties. It would be oppressive to require it.

. Decree for complainant.