Carrow v. Adams, 65 N.C. 32 (1871)

Jan. 1871 · Supreme Court of North Carolina

65 N.C. 32

SAMUEL T. CARROW v. JOHN Q. ADAMS.

Where no replication is filed to an answer in equity, and the cause is set down to be heard upon bill and answer, the bill must be dismissed when the allegations in it are not admitted in the answer.

Where an equity is disclosed in an answer different from that which is alleged in the bill, the plaintiff ought to have his bill amended to meet such state of facts and to obtain the appropriate relief.

This was a bill filed under the old practice to which the defendant filed his answer, and the cause was set for hearing upon the bill and answer without any replication having been taken. Upon the cause coming on to be heard before his Honor, Judge Jones, at the last term of the Superior Court for Beaufort County, the plaintiff obtained a decree and the defendant appealed.

The facts of the case are sufficiently stated and explained in the opinion of the Court.

Battle & Sons, for the defendant.

Warren & Garter, for the plaintiff.

Dick, J.

The allegations in complainants’ bill are not supported by proofs, or admitted in the answer.

The complainant alleges that the note which he seeks to have cancelled was given without any consideration, and was intended to benefit tbe defendant by enabling him to secure certain cotton from seizure, &c.

The answer alleges that the defendant sold said cotton to complainant and the said note was given in part satisfaction for the purchase money; and the non-delivery of the cotton was caused by the default of complainant, &c.

The complainant, by replying to the answer, could have introduced proofs in support of his allegations. As no replication was taken, the defendant had no opportunity of verifying his allegations and according to the rules of equity pleading, his answer must be taken as true at the hearing of the cause.

If any equity different from that alleged in the bill was disclosed in the answer, the complainant ought to have amended his bill to meet such state of facts, and to obtain the appropriate relief. ■

There is error in the ruling of his Honor in the Court below.

Per Curiam. Bill dismissed.