87 N.C. 169 | N.C. | 1882
The second and third defences set up in this action are of course wide of the mark, since, as to bonds due before the adoption of the Code, the statute of limitations has no application, but only the statute of presumptions of 1826.
We cannot, however, concur with his Honor in thinking the allegations of the second article to be insufficient to raise an issue proper to be submitted to the jury.
Under the Code, it is the facts of the case, whether relating (171) to the plaintiff's cause of action or to the defence, and not conclusions of law, that must appear in the pleadings; and the only requirement is, that they shall be properly arranged and stated with such precision as if proved will enable the court to proceed to judgment thereon.
The law itself declares that a presumption of payment or satisfaction on all contracts, shall arise within ten years after the right of action thereon shall have accrued; and since it can never be necessary to allege more than it is necessary to prove, nothing beyond an averment of the lapse of that period of time, can be needed to state a valid legal defence thereto, for if true, then the consequence follows as a legal intendment.
It is true, the defendant might have had the benefit of the same statutory presumption under the allegation that the plaintiff's demand has been paid, but really, it would seem, that such a mode of pleading is less in keeping with the spirit of the Code, than the one adopted in the answer, and less calculated to give that notice of the real defence relied on, which it should be the object of every well devised system of pleading to secure.
We think, therefore, that the defendant's answer set forth a valid defence in a legal way, and as the proofs correspond with the allegations contained therein, he was entitled to the instructions asked for at the hands of the court; and because of the failure to give them, he is entitled to a venire de novo.
Error. Venire de novo.
Cited: Pipes v. Lumber Co.,
(172)
