Inman v. Jenkins

3 Ohio 271

• Court: Ohio Supreme Court
• Decided: December 15, 1827
• Status: Published

Opinion

By the Court :

The evidence offered in the court below, was properly rejected for two reasons. First, it was not competent for the defendant to prove a former recovery by parol. The ^circumstance stated, in relation to the loss of the docket, does not take the case out of the general rule. The objection to that kind of testimony, and the uncertainty and danger to be apprehended from it, is still the same. The docket might have been lost or mislaid by accident; or it might have been put out of the way, by design, to lay the foundation for parol testimony. In either case, the consequences are the same.

The evidence is not the best the nature of the case admits of; nor is it such as the law requires.

Salutary rules must not be dispensed with, because eases may arise in which they are found to be inconvenient.

But, independent of this ground, we are of opinion that by our practice act, this defense could not be set up, under the general issue, without a notice. Although it has been considered by this court, that the act does not require a notice of every matter, which, if specially pleaded, would be a good bar; yet we think the defense attempted, in this case, does not require it. Such has been the practice, and we do not recollect a case in which a former recovery has been proved, under the general issue, without a notice.

Judgment affirmed.