5 Blackf. 334 | Ind. | 1840
Quick brought an action of debt against Thomas on a promissory note. Pleas, 1. Nil debet; 2. That the note was given in part payment of a tract of land, (describing it,) conveyed by the plaintiff and his wife to the defendant; and that the grantors, at the time of the conveyance, had no title to the land. Replication to the second plea, that the consideration had not failed in manner and form as alleged. The replication was specially demurred to as being too general. The demurrer was overruled, and the cause submitted to the Court. Final judgment for the plaintiff.
The defendant contends that the replication is bad; We decided at the last term, in the case of Farmer v. Fairman, that such a replication as the one before us,, denying generally the matters of excuse contained in the plea, is unobjectionable ; and we are still of the same opinion (1).
It is further contended that the evidence does not support the judgment. We are, however, of a different opinion. The plaintiff read the note in evidence. It then lay on the defendant to prove the facts contained in his special plea; and this he undertook to do. He proved the consideration of the note to be as stated in the plea; but he failed to prove that the grantors had no title to the land
The judgment is affirmed with costs.
Vide Mitchell v. Sheldon, Vol. 2 of these Rep. 185. The remark in that case, tliat the want or failure of consideration in assumpsit must be pleaded, is probably a mistake. Jamison v. Buckner, Id. 77. See, also, Elliott v. Coggshall, 4 id. 238.
