West v. Meddock ( 1865 )

Brinkerhoee, J.

The record of the judgment sought to be reversed in this proceeding presents the questions ruled by the court in tho following propositions:

*1. The period of three years, to which the time for the commencement of proceedings in error in civil cases is limited by the code, begins to run, not from the first day of the term at which the judgment sought to be reversed was rendered, but from the day on which it was actually rendered.

2. When, during the time the ten per cent, law, so called, was in force, tho plaintiff loaned to the defendant the sum of two thousand dollars only, and, on that consideration alone, took from him a promissory note for twenty-five hundred dollars, bearing interest, by its terms, at ten per cent., and the true state of facts being set up in the answer and established by proof on the trial, the plaintiff, in the adjudication of tho case, is entitled to be allowed no more than the sum actually loaned, with interest at the rate fixed by law for the forbearance of money, in the absence of a contract as to the rate, to wit, six per cent.

3. Where, in such case, the defendant has, by mistake, overpaid the plaintiff the amount actually borrowed by him, with interest at six per cent., and with his answer sets up the fact by way of counter-claim, he is entitled to judgment against the plaintiff for the amount of such overpayment.

,4. In a case of the kind above mentioned, the provisions of the code of civil procedure do not authorize the plaintiff to set up in his reply, nor to prove on the trial, by way of set-off, that the defendant is indebted to him, in dealings and transactions between them, entirely distinct from, and foreign to, the subject-matter of tho issues made by the petition, answer, and counter-claim; and such claims of set-off, when presented by the reply and offered in evidence on the trial, were properly rejected, with leave to withdraw the same without prejudice to any future action.

Judgment affirmed.

Scott, C. J., and Day, White, and Welch, JJ., concurred.