Malcolm v. Fagan

Headnote

Answer—Evidence of matter not set up in, rejected.

Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

The action was brought upon a promissory note, indorsed by the defendant. At the trial, the defendant offered to prove that the note was made for the accommodation of one Phelps, and that it

was delivered to the plaintiff, not to be used, but to be held by him as security for advances made in buying in the property of Phelps at a sheriff’s sale, and that it was diverted from the purpose for which it was made. The court held that the evidence was properly rejected, as no such defense was set up in the answer.