Opinion
June Term, 1813.
From Martin.
1. To an action of debt on a bond, the defendant pleaded that it was given for an illegal consideration; and on the trial offered to prove that the bond was given in consideration of compounding a prosecution for a felony. The evidence rejected, because the plea was too indefinite to apprise the plaintiff of the particular illegal consideration intended to be relied upon.
2. But upon an affidavit filed that the defendant had instructed his counsel to defend the suit upon the ground that the bond was given for compounding a felony, leave was given to the defendant to amend his pleas and set forth this special matter.
THIS was an action of debt on a sealed instrument. The defendant pleaded "that it was given for an illegal consideration. " On the trial the defendant wished to give (287) evidence that the bond was given in consideration of compounding a prosecution for a rape. This was opposed on the ground that the defendant's plea was not sufficiently special for such evidence to be received. This point was reserved by the court. The defendant obtained a rule on the plaintiff to show cause why he should not be permitted to add a special plea, upon an affidavit made by him, that he had instructed his counsel in the County Court to defend the suit on the ground that the bond was given to compound a felony.
Two questions were sent to this Court: (1) Whether the defendant could give evidence of compounding a prosecution for a rape, under the plea of "illegal consideration," and (2) whether upon the affidavit filed the defendant should be permitted to add a special plea, and if so, upon what terms.
The memorandum of "illegal consideration," made on the docket, is entirely too indefinite to apprise the plaintiff of the point on which defendant actually relied. Of the numberless illegal considerations for which a bond may be given, it would be highly unreasonable to except that in every instance the plaintiff should understand that one precisely which the defendant intended to urge when he entered his plea. But having guessed rightly, and summoned witnesses to explain the intended defense, what should prevent the defendant from afterwards shifting his ground, and setting up some other objection to the bond, which the plaintiff may be 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 (288) due season, what was the nature of his defense, the justice of the cause seems to require that the amendment should be made without costs.
Cited: Rountree v. Brinson, 98 N.C. 109.