Bryan v. Drake ( 1838 )

Gaston, Judge.

It is impossible for the defendant to make any thing of the exception which he has taken to the Judge’s charge. The defence attempted to be made out, and the proofs offered, were altogether irregular and inadmissible upon the trial. The only pleas in the cause were payment and set-off, and every enquiry before the Jury that did not tend to establish, or contradict these pleas was irrelevant. It is manifest that the case set up by the defendant could not amount to a payment or set-off. If it could avail him at all, it must have been by way of defeasance, and it should have been pleaded as such. But even then a return of the papers, or something equivalent to a return, must have preceded, or at least accompanied the plea, as every plea must be true or false according to the state of facts, when it is pleaded. The effort to procure a credit by a return of the papers on the trial, received but too much indulgence from the court — and the failure to succeed in it furnishes no legal cause of complaint.

Pee Curiam. , Judgment affirmed.