
    No. 967.
    Sullivan v. Blythe.
    November Term, 1880.
   When the Circuit judge, in his charge to the jury, makes general remarks which have no special application to the case then before the court, he cannot be said to have commented on ¡ he. facts of the case in violation of Article IV., Section 26, of the constitution of this state.

January 10th, 1881.

Q. G. Wells, for appellant.

J. C. G. Featherston, contra.

2. Action by assignee of a sealed note against the maker. ' Defendant set up debt due him by assignor before notice of assignment, and called it a counter-claim, but demanded no relief against plaintiff. Evidence offered at the trial to prove this equitable defence was objected to, because pleaded only as a counter-claim. Objection overruled and evidence admitted. Held, no error. Bliss’ Code PL, § 389; Pom. on Bern., § 92; Code, § 135.

3. Defendant failed to serve itemized statement of his account within ten days after demand, but plaintiff did not return it, nor object until trial. The items were set out in the answer, except amounts. Held, that there was no error in permitting this account to be proved at the trial.

4. It would seem that an allegation in the answer that defendant “ was attorney of the said assignor, and so continued up to the commencement of this action,” would support a charge of “fee as general attorney for three years, at $100 a year.” Appeal dismissed. Opinion by

Simpson, C. J.,  