Thornton v. Williams

14 Ind. 518

• Court: Indiana Supreme Court
• Decided: June 13, 1860
• Status: Published

Opinion

Perkins, J.

Suit upon a note. Answer by way of set-off.

Reply, 1. In denial of the set-off. 2. That it was settled at the time the note was given.

This is the substance of the second somewhat informal paragraph. One of the items of the set-off set up in the answer was dated later than the note. But the date was not conclusive, if even prima facie, evidence of the time the item accrued, if it accrued at all.

Under these issues, upon a trial, the defendant might prove all the items of his set-off, and the plaintiff would have to show that they were settled in the note. If they all accrued before the date of the note, the note would be prima facie, but not conclusive, evidence that they had been settled. As to such as did not so accrue, the note would not be prima facie evidence of settlement.

A trial was had, and the plaintiff had judgment. A new trial was granted. The defendant then asked leave to demur to the second paragraph of the reply. Leave was refused. This was matter in the discretion of the Court; and the discretion does not appear to have been abused. Perk. Pr., p. 234.

The cause was then retried upon the issues previously formed. Judgment for the plaintiff. There is no error.

W. March, for the appellant. A. J. Neff,, for the appellee.

Per Curiam.

The judgment is affirmed with 10 per cent, damages and costs.