Rose v. Mortimer ( 1856 )

Catón, J.

This was an action on a promissory note, by an assignee, to which the defendant filed a plea of the general issue. Under this plea the defendant, on the trial, offered to prove a failure of consideration, which the court ruled out, and which is the decision complained of.

The court decided óorrectly. The right to defend a promissory note for a want, or failure, or partial failure of consideration, is conferred by the 10th section of chapter 73, R. S., and that statute requires the defence to be pleaded. There is hardly a volume of our reports, in which cases are not found, where this court has passed upon the sufficiency of such special pleas ; but I do not find that it has before been attempted to set up the defence under the general issue. The statute does.not authorize it, and the court properly ruled out the defence' offered.

The judgment must be affirmed. '

Judgment affirmed.