Bryan v. Drake, 20 N.C. 72, 3 Dev. & Bat. 72 (1838)

June 1838 · Supreme Court of North Carolina

20 N.C. 72, 3 Dev. & Bat. 72

THOMAS BRYAN v. JOHN H. DRAKE.

June, 1838.

A plea must be true at the time it is pleaded, and a stipulation, in the nature of a defeasance to a bond, by which the obligor is to have a credit upon returning a note to the obligee, cannot be made available by making the return on the trial.

Evidence of such a defeasance will not support a plea of payment, nor of set-off.

Debt upon a single bond.

Pleas — Payment and a set-off.

On the trial before Pearson, Judge, at Nash, on the last circuit, the defendant to support his pleas, proved that the bond was given for a balance due by him as former guardian, to one Sarah G. "Atkinson, which was composed, in-part, of sundry evidences of debt left in the hands of the defendant, under an agreement in writing, whereby the plaintiff bouud himself to credit the amount of these debts upon the bond, in case they should not be paid, and should be returned by the defendant to the plaintiff.

The evidences of those debts were not returned until the trial, when they were produced and a credit claimed for their amount. A question was made whether the defendant had not lost the benefit of this stipulation 'by his laches which it is not necessary further to notice.

His Honor directed the Jury to find for the plaintiff and the defendant appealed.

The Attorney General, for the defendant.

Badger and B. F. Moore, contra.

Gaston, Judge.

It is impossible for the defendant to make any thing of the exception which he has taken to the Judge’s charge. The defence attempted to be made out, and the proofs offered, were altogether irregular and inadmissible upon the trial. The only pleas in the cause were payment and set-off, and every enquiry before the Jury that did not tend to establish, or contradict these pleas was irrelevant. It is manifest that the case set up by the defendant could not amount to a payment or set-off. If it could avail him at all, it must have been by way of defeasance, and it should have been pleaded as such. But even then a return of the papers, or something equivalent to a return, must have preceded, or at least accompanied the plea, as every plea must be true or false according to the state of facts, when it is pleaded. The effort to procure a credit by a return of the papers on the trial, received but too much indulgence from the court — and the failure to succeed in it furnishes no legal cause of complaint.

Pee Curiam. , Judgment affirmed.