Majority
p. 113Smith against Gregory and another.
Headnote
Assumpsit on a promissory note. Plea the general jggue with notice of special matter, containing certain par- ' r i o r ticulars showing the note to be usurious..On the trial at the February circuit, 1827, before Duer, q_ Judge, the evidence of usury varied in some material . ° particulars from the notice. On objection, therefore, the judge excluded the evidence as inadmissible under the notice. The defendants excepted. Verdict for the plaintiff
Where the defendant has a right to give evidence of his thf6general^ sue, though he give notice of such matter from^the^evidence, this shallnot.be ex-
cluded by reason of the variance. The notice may be entirely disregarded.
p. 114
Jl T. B. Van Vechten, now moved for a new trial.
J. Hoyt, contra.
It is perfectly clear, that where matter is proper as a defence under the general issue, a notice of special matter will not restrict the defendant. If he fails to sustain his notice, he may still take the general ground allowed by the issue. The notice may, in such case, be totally disregarded.
Hew trial granted.