
    No. 43.
    Solomon Wall, plaintiff in error, vs. William W. McNeil, defendant in error.
    
       Tlie Act of 1836 requiring the plea of partial failure of consideration to be made at the first term of the Court to which the action is returnable, is • repealed, by necessary implication, by the law of 1853-4, which authorizes any amendment to be made to the pleadings, either in matters of form or • substance, at any stage of the proceeding.
    
    Assumpsit, in Marion Superior Court. Decided by Judge Worjull, March Term, 1856.
    This was an action brought by William W. McNeil against Solomon Wall. The case being on the appeal, came up for-trial in the Court below, when the defendant made a motion to continue ; but before stating the ground upon which he ■ predicated his motion, the Court, at the instance of plaintiff’s-Counsel, ordered a plea of partial failure of consideration, which had been filed by defendant, to be stricken, on the ground that it had not been filed at the term of the Court to which the case was made returnable, but at the first term after entering the appeal.
    To this ruling defendant’s Counsel excepted, and assigns' for error the refusal of .the Court to permit defendant to make his showing for a continuance, under the then state of' the pleadings, and the judgment of the Court striking said plea of partial failure of consideration.
    This case was submitted without argument.
    William D. Elam, for plaintiff in error.
    1. B. Smith, for defendant in error.
   By the Court.

Lumpkin, J.

delivering the opinion.

The only question in this case is, whether the plea of' partial failure of consideration can be made after the first term of the Court to which the action is returnable ?

By the Act of 1836, (Cobb, 490,) it is declared that it shall not be done. But by the Act of 1853-’4, it is provided, that any amendment of the pleadings, either in matter of form or substance, may be made at any stage of the proceeding.. This is a repeal by necessary implication of the old law.  