The memorandum on the docket is entirely too indefinite to apprize the plaintiff of the point on which the defendant actually relied. Of the numberless illegal considerations for which a bond may be given, it would be highly unreasonable to expect, that in every instance, the plaintiffs should understand, precisely that one, which the de*278fendant intended to urge, when he entered his plea. But having guessed rightly, and summoned witnesses to explain the intended defence, what should prevent the defendant from afterwards shifting his ground, and setting up some other objection to the bond which the plaintiff was altogether unprepared to repel? But, upon looking into the affidavit filed in the case, the Court are of opinion that the defendant ought to have leave to amend the plea: and as he instructed his counsel in due season, what was the nature of his defence, the justice of the cause seems to require that the amendment should be made without costs.
Boyt v. Cooper, 4 N.C. 277, 1 Car. L. Rep. 277 (1811)
Boyt v. Cooper.
This was an action of debt, on a sealed instrument. The defendant pleaded that the bond was given for an illegal consideration. On trial, the defendant wished to give in evidence that the bond was given in consideration of compounding a felony for a rape. This evidence was opposed by the plaintiff’s counsel, because the plea was not sufficiently specific to introduce the same. This point was reserved by the Court. The defendant obtained a rule on the plaintiff to shew cause why he should not be permitted to add a special plea, upon an affidavit by the defendant, that he had instructed his counsel in the county court, to defend the suit because the bond was given to compound a felony.
Questions for the Supreme Court: 1st. Can the defendant give evidence of compounding of felony for a rape, under the plea of “illegal consideration?” 2d. Can the defendant be permitted to add the special plea, upon the affidavit filed after a trial in the county court, and an appeal taken; and if he can, upon what condition?