Shannon v. Trimble , 1868 Ky. LEXIS 342 ( 1868 )

Opinion of the Court by

Judge Hardin :

It appears from the record that the bills of exception were filed at a special term of the court, and as no objection was then made to the action of the court, it cannot be made an available objection for the first time in this court.

We do not regard the answer of the appellant as presenting a sufficient set-off or counter-claim to which any reply was required, but, as it seems to us, it sufficiently presents as a defense to the action that the note was given in consideration of a claim which had already been satisfied by the payment of usurious interest, and was not merely the subject matter of a claim in favor of Redman for usury paid, liable to be barred by limitation. It is not necessary that this court should determine from the evidence in the record whether the defense was wholly or only partially sustained, but we are of the opinion that the judgmentt which disregards the defense of usury except to the extent of $32 is erroneous, and it must on that account be reversed.

Ward, for appellant. Trimble, for appellee.

Wherefore, the judgment is reversed, and the cause remanded for a new trial and for further proceedings not inconsistent with this opinion: