5. An amendment in order to insert omitted allegations may be allowed, even after a demurrer to the complaint for the defect has been sustained. ( Howell v. Edwards, 30 N.C. 516; Hewit v. Wooten, 52 N.C. 182; Hatch v. Cohen, 84 N.C. 602; Love v. Comrs., 64 N.C. 706; Tucker v. Baker, 86 N.C. 1; Garrett v. Trotter, 65 N.C. 430; Pearce v. Mason, 78 N.C. 37; Wilson v. Sykes, 84 N.C. 215; Halstead v. Mullen, post, 252; Rand v. Bank, 77 N.C. 152; Grant v. Burgwyn, 88 N.C. 95; McLaurin v. Cronly, 90 N.C. 50, cited and approved.) CIVIL action, tried at September Term, 1885, of DAVIDSON, before Montgomery, J.
In this case, an equitable defence was set up in the answer, but abandoned on the trial for the want of evidence to sustain it; and it was held error to receive evidence to support a new equitable defence, not suggested in the pleadings, but set up ore tenus. ( McKee v. Lineberger, 69 N.C. 217; Shelton v. Davis, Ib., 324; Rand v. Bank, 77 N.C. 152; Carpenter v. Huffsteller, 87 N.C. 273; Grant v. Burgwyn, 88 N.C. 95, cited and approved). EJECTMENT tried at January Special Term, 1883, of RICHMOND Superior Court, before Graves, J.
pros. as to certain causes of action, it is a matter of discretion in the court, whether he shall re-instate them. ( Platt v. Potts, 11 Ired., 266; Gibson v. Smith, 63 N.C. 103; Craige v. Craige, 6 Ired. Eq., 191; Herron v. Cunningham, 1 Ired. Eq., 376; Shelton v. Davis, 69 N.C. 324; Rand v. Bank, 77 N.C. 152; Pearce v. Mason, 78 N.C. 37, cited and approved). CIVIL ACTION tried at January Special Term, 1882, of NORTHAMPTON Superior Court, before Graves, J.
For exactly the same reason an equitable defense cannot be proven unless set up in the answer. Talbert v. Becton, 111 N.C. 543; Hinton v. Pritchard, 102 N.C. 94; see, also, McLaurin v. Cronly, 90 N.C. 50, in which the matter is so clearly stated, citing McKee v. Lineberger, 69 N.C. 217; Shelton v. Davis, ib., 324; Rand v. Bank, 77 N.C. 152, and Carpenter v. Huffsteller, 87 N.C. 273, that further discussion by us is unnecessary. The counsel for plaintiffs are correct in asserting that the distinction between law and equity is abolished — that is, that they are no longer administered in separate forums; but the proposition before us is simply the maintenance of the just and reasonable doctrine that there must be allegation as well as proof.
He cannot rely upon a cause of action suggested in the pleadings by his adversary. Shelton v. Davis, 69 N.C. 324; Rand v. The Bank, 77 N.C. 152; McLaurin v. Cronly, 90 N.C. 50. It is true, that in some cases, a defective or imperfect statement of a cause of action, may be aided by admissions in the answer, as was decided in Garrett v. Trotter, 65 N.C. 430, and Johnson v. Finch, 93 N.C. 205, but this is not one of them.