Colburn v. Spitz

OPINION OP THE COURT BY FREAR, J. This is an action of assumpsit on two promissory notes, each for $68.85. The case comes here on plaintiff’s exceptions from the Circuit Court where it was tried before a jury on plaintiff’s appeal from the District Court. Only two exceptions need be considered. The first was taken to the overruling of plaintiff’s objection to the introduction of evidence of failure of the consideration for the notes. The objection is based on the ground that the defense of failure of consideration was not pleaded. In our opinion it was unnecessary to plead it. By Sec. 1107 of the Civil Code, under an answer of general denial, “the defendant may give in evidence, as a defense to any civil action, any matter of law or fact whatever;” and Buie 4 of the Circuit Courts which requires him to give notice of his intention to rely on certain defenses does not extend to the defense of failure of [105] consideration. See Gomez v. Hawaiian Gazette Co., 10 Haw. 108. O. Creighton, for plaintiff. A. G. M. Robertson, for defendant. The other exception was taken to the refusal to allow plaintiff’s counsel to ask the defendant on cross-examination certain questions for the purpose of proving that he had been a bankrupt, that his discharge in bankruptcy had been at first refused, although afterwards granted, that his property was in his wife’s name, and that his was a case of fraudulent bankruptcy. The object was to impeach the credibility of the witness. The rule is that particular acts of misconduct cannot be proved for the purpose of impeaching the general credibility of a witness. The exceptions are overruled’.