
    PIIPIILANI v. G. HOUGHTAILING.
    Exceptions prom Circuit Court, Eirst Circuit.
    Submitted June 29, 1897.
    Decided July 20, 1897.
    Frear and Whiting, JJ., and A. G. M. Robertson, Esq., of the Bar, in place of Judd, O.J., absent.
    It is not competent for a defendant on cross-examination of the plaintiff to show that the latter has received payment of the sum sued for, no notice of an intention to rely on that defense having been given as required by Rule of Court.
   OPINION OF THE COURT BY

FREAR, J.

This is an action for $1200 upon a promise of the defendant to pay to the plaintiff $120 a year during the remainder of the plaintiff’s life from April 3, 1886, and for interest on said sum. The Circuit Court, jury waived, found for the plaintiff in the sum of $720, the sum of the instalments not barred by the statute of limitations, with interest on each of these instalments from the date it became due.- The case comes here on three exceptions.

The exception mainly relied on was taken to the refusal of the trial court to allow defendant’s counsel on cross-examination of the plaintiff to show that the plaintiff had received certain benefits from the defendant. The matters sought to be introduced on the cross-examination did not relate to matters brought out on the direct examination. It was not strictly a case of cross-examination. The object was to establish the affirmative defense of payment and tbe evidence was rejected because notice of dn intention to rely on that defense bad not been given as required by Rule é of tbe Circuit Courts. Tbis was not error. See Sherman v. Harrison, 7 Haw. 663, and 8 Enc. Pl. and Pr. 108. Moreover, tbe evidence, if allowed, would not bave proved payment. Tbe benefits sought to be proved bad nothing to do with tbe claim sued on. '

Magoon & Edings, for plaintiff.

C. Creighton, for defendant.

Tbe other two exceptions were taken to tbe allowance of instalments for more than one year previous to judgment, and to tbe allowance of interest on each instalment. Having examined tbe pleadings, tbe evidence and tbe findings of tbe trial court, we,fail to see any merit in these exceptions.

Tbe exceptions are overruled.  