Olcott v. Hanson
Michigan Supreme Court
Error to Washtenaw Circuit, to which the cause had been appealed from a justice of the peace. Hanson brought suit against Oleott, on a promissory note of $85, dated March 28th, 1859, on which several indorsements had been made. Oleott pleaded the general issue, with notice of various items of set off.
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Error to Washtenaw Circuit, to which the cause had been appealed from a justice of the peace. Hanson brought suit against Oleott, on a promissory note of $85, dated March 28th, 1859, on which several indorsements had been made. Oleott pleaded the general issue, with notice of various items of set off. On the trial in the Circuit Court, June 17, 1863, the •defendant offered evidence of a payment of five dollars, made on the note in November, 1860. The plaintiff objected, for the reason that the .bill of particulars of set off contained no item of five dollars, for money paid in November, 1860.…
1Opinion of the Court
Martin Ch. J. :
That the Court erred in refusing to allow the defendant to prove the payment of five dollars upon the note in suit, because it was not included in his bill of particulars, is unquestionable. Payment can always be proved as a matter of direct defense. Except in this particular, the jury were in no way misled on the trial. But while the case was still within the control of the Circuit Court — for it had suspended all further proceedings therein until the 24th of August — and evidently during the same term, leave was granted, on the 24th of August, to the plaintiff to remit the…
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