
    No. 1351.
    McGrath & Byrum v. Barnes.
    November Term, 1882.
    
      March 6th, 1883.
    
      Moore and Murray & Murray, for appellant. Harrison & Broyles, contra. Mr. Justice McGowan, having been of counsel, did not sit.
   Opinion by

Mr. Chief Justice Simpson,

Action on note stated in the complaint and admitted in the answer. The defense was, that the note was a mere memorandum given under a certain agreement, and testimony was introduced to prove this agreement. This was held error on a preyious appeal in this case, reported 13 8. G. 328. At the second trial, without any amendment of the pleadings, defendant offered to prove that the account for which the note was given contained overcharges, and that there was nothing clue thereon when this note was given. The presiding judge (Aldrich) ruled that this testimony was incompetent. Held, that this ruling was correct, the testimony offered not being pertinent to any issue raised in the pleadings.  