Patterson v. Bryan , 1 Dallam 529 ( 1843 )

OCHILTREE, Justice.

Patterson sued Bryan and Karnes in an action of debt on a protested draft. The defendants came into court and in general terms denied any indebtedness. Under this plea or answer, the defendants offered to prove by the books of the late firm of Bryan & Karnes that the plaintiff was indebted to the defendants in a sum exceeding the amount of the instrument sued on by the plaintiff, which testimony was rejected by the court as inadmissible under the plea of the defendants, on the ground that there was no plea or answer of the defendants stating such defense with a bill of particulars, and that so the evidence would operate surprise to the adverse party; to which opinion of the court the defendants’ counsel excepted, and appealed to this court. The defendants’ plea was filed on the 12th March, 1841, nearly twelve months after the passage of the statute allowing discounts and set-off, which is so entirely plain and positive in its terms that we can give no stronger reason for affirming the judgment of the court below, than by referring to the second section of the said act— page 62, Laws of 1840. We are therefore unanimously of the opinion that the judgment of the court below be affirmed, with 10 per cent damages thereon for delay, etc.

Affirmed.