Martin County NcArchives Court.....Boyt, Vs. Cooper 1811-18
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 12, 2008, 11:43 pm

Source: North Carolina Reports
Written: 1811-18

June Term 1813.

MARTHA BOYT v. JOHN COOPER. 

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 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.

Taylor, C. J. 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 expect 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 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.

Additional Comments:
North Caroline Reports, Vol. 6, Cases Argued and Determined in the Supreme 
Court of North Carolina, Reported by A.D. Murphey, Annotated by Walter Clark. 
1811 to 1813, Inclusive and at July Term, 1818. Reprinted by the State. E.M. 
Uzzell and Company, State printers and binders, 1910.

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