
    ABIJAH MANN, JR., v. JOHN BRUCE AND CHARLES BRUCE.
    A defence not raised by the pleadings cannot be raised by proofs. Semble. On a bill filed by a receiver for the creditors and stockholders of a corporation, it is not necessary to make the creditors and stockholders parties.
    Bill for the foreclosure of a mortgage given by John Bruce and Charles Bruce to James Ballagh. The mortgage was assigned by the executors of Ballagh’s will to George D. Strong ; and by Strong to Joseph D. Beers, president of the North American Trust and Banking Company, his successors and assigns ; and by the said Beers to Thomas G. Talmage, president of the said company, his successors and assigns; and by the said Talmage to Henry Yates, Thomas G. Talmage and William C. Noyes, trustees, to have and to hold to them, their executors, administrators and assigns; and by the said Yates, Talmage and Noyes to Abijah Mann, Jr., the complainant, to nave and to hold to him, his heirs and assigns.
    John Bruce put in an answer, admitting the facts stated in the Dill, except as to the assignments; and as to them, he says it may be true that the assignments were made as stated in the bill, but that he is a stranger thereto, and cannot form any belief concerning the same, and therefore leaves the complainant to his proofs.
    The assignments were proved.
    The defendants put in proof that Abijah Mann, Jr., the complainant, was receiver for the creditors and stockholders of the North American Trust and Banking Company; and that this mortgage came to his hands in that character.
    
      B. Williamson, for the defendants, contended
    — 1st. That the bill should have stated the complainant’s character as receiver; 2d. That the cestuis que trust should have been made parties.
    
      D. A. Hayes, contra.
    
    He cited 1 Johns. Ch. R. 349, 437; 1 Green’s Ch. 305; 11 Ves. 444; 16 Ves. 321; 2 Johns. Ch. 197; 4 Paige 34.
   The Chancellor.

The mortgage is assigned to Abijan Mann, Jr., (the complainant,) his heirs and assigns, without stating him to be receiver. The answer does not set up that he is receiver, but admits the facts stated in the bill, except as to the assignments, of which the defendant says he is ignorant, and leaves the complainant to his proof thereof.

A defence not raised by the pleadings cannot be raised by proofs.

It is said that the defendants might have a good defence against the North American Trust and Banking Company. If they had, they should have set up the defence in the answer, and that the complainant was only receiver; or, if they did not know, when the answer was filed, that the complainant was receiver only, they should have asked to amend the answer, for the purpose of showing that, and of setting up their defence.

Under the form of the assignment to the complainant, I apprehend that if the fact of his being receiver only had been set up in the answer, it would have put no difficulty in the way of a decree on the bill as it stands, unless the defendants had also set up a defence against the company.

As to parties, if it had appeared by the bill that the complainant was receiver only, it would not have been necessary to make the creditors and stockholders of the company parties. It would be oppressive to reauire it.

Decree for complainant.  