#### J. H. BOLICK v. CITY OF CHARLOTTE.

(Filed 28 April, 1926.)

Municipal Corporations — Cities and Towns — Charter—Private Statutes— Defenses — Demurrer—Appeal and Error.

A defendant relying as a defense upon a special provision in its charter requiring certain notice before action brought, must allege as well as prove it, and a demurrer to the complaint in which such provision is not set out as not sufficiently stating a cause of action, is bad.

Appeal by defendant from Bryson, J., at November Term, 1925, of MecKleNbubg.

Affirmed.

Civil action to recover damages for injuries to plaintiff’s land, alleged to have been caused by the negligent discharge of sewage by defendant, a municipal corporation, into Sugar Creek, which flows over and along the lands of plaintiff. Defendant demurred to the complaint, for that it is not alleged therein that plaintiff, prior to the commence*678ment of tbe action, gave to defendant notice of tbe alleged injury and bis claim for damages, as required by section 15, cb. 251, Private Laws of 1911. From judgment overruling demurrer, and allowing defendant time to answer, defendant appealed to tbe Supreme Court.

T. L. Kirhpatrich, H. L. Taylor, Jas. A. Loclchart, and Preston & Boss for plaintiff.

C. A. Cochran, Gansler & Gansler, and Taliaferro & Glarlcson for defendant.

Per Curiam.

Defendant, by its demurrer to tbe complaint, on tbe ground that tbe facts stated therein are not sufficient to constitute a cause of action against defendant, relies upon tbe provisions of section 15, cb. 251, Private Laws 1911, entitled, “An act to amend tbe charter of tbe city of Charlotte.” There is no reference in tbe complaint to said private act of tbe General Assembly, nor is there an allegation therein that defendant is a municipal corporation by virtue of said private act. It is well settled that courts do not take judicial notice of private acts of tbe General Assembly. Parties to an action who rely upon such acts must plead and prove them. Reid v. R. R., 162 N. C., 355; Corporation Commission v. R. R., 127 N. C., 283; C. S., 541. Defendant cannot avail itself of the provisions of its charter, which is a private act of tbe General Assembly, by a demurrer to tbe complaint, in which said private act is neither alleged nor specifically referred to. Such provisions, if relied upon to defeat plaintiff in bis action, must be set up in tbe answer as a defense. Tbe demurrer of defendant is a “speaking demurrer”; it was properly overruled. Sandlin v. Wilmington, 185 N. C., 257; Cherry v. R. R., 185 N. C., 90; Trust Co. v. Wilson, 182 N. C., 166; Godwin v. Gardner, 182 N. C., 97; Kendall v. Highway Commission, 165 N. C., 600; Wood v. Kincaid, 144 N. C., 393; Von Glahn v. DeRossett, 76 N. C., 292.

"We have not considered tbe interesting questions, discussed in tbe briefs filed in this Court, involving tbe sufficiency of tbe notices given, as shown by tbe exhibits attached to tbe complaint. Whether such exhibits constitute a substantial compliance with tbe requirements of tbe statute cannot now be determined. It is not alleged that these notices were given as required by defendant’s charter. We bold only that tbe demurrer was properly overruled, for tbe reasons herein stated. Tbe judgment is, therefore,

Affirmed.