
    AS TO PAYMENT OF A NOTE BY USURIOUS INTEREST.
    Circuit Court of Hamilton County.
    W. F. Margeson v. Eckart Kellar.
    Decided, January 26, 1910.
    
      Pleading — Want of Consideration and Payment of a Note Distinct Defenses — Variance Between Allegations of Petition and the Evidence Submitted.
    
    Where payment is relied upon as a defense from liability upon a note, it is necessary that it should he pleaded; and it is error to admit evidence with reference to payment, or to charge the jury with respect thereto, where the only defense set up is want of consideration.
    
      Bates & Meyer, for plaintiff in error.
    
      Spencer M. Jones, contra.
    Smith, J.; Giffen, P. J., and Swing, J., concur.
   Plaintiff in error’s action below declared upon a promissory-note. Defendant’s answer sets up a want of consideration for the same.

Tbe case was tried upon the theory that the note was paid by defendant in error by way of usurious interest paid thereon, and the court in its charge to the jury stated that payment in this matter could be proven by defendant in error.

Want of consideration for a note and payment of the same are two separate, distinct defenses, and if defendant in error relied upon payment to discharge his liability it was necessary that it should be pleaded (Lord v. Graveson, 4 C. C.—N. S., 268). As this was not done, the court therefore erred in admitting evidence relative thereto, and in charging the jury in that respect.

Upon the whole record we do not feel that this court would be justified in entering judgment for plaintiff in error. The judgment of the court will therefore be reversed and a new trial granted,'so that upon proper pleadings the matter in controversy can be determined as the justice of the case would seem to demand.  