
    
      Thompson vs. Varnin.
    
    July 2.
    Error to the Harrison Circuit; Henry O. Brown, Judge.
    
      Consideration. Misrcprcsention. Fraud. Scienter,.
    
    Case 95.
    If vendor falsely represent that for which a note is given to be of value, when it is rf no value, consideration may have failed, and a scienter not indispensable.
    
      John Trimble, for plaintiff; Wall, for defendant.
   Chief Justice Robertson,

delivered the opinion of the court.

The issues are not immaterial. If, as alleged in the pleas, the Jack, which was the only consideration of the note, was falsely and delusively represented by the vendors or either of them, and was of no value, the consideration may have failed. Whether the tender was made in a reasonable time or not, is not now material; the replications virtually admit that it was made in sufficient time. In such a case a scienter is not indispensable.

But the court erred in excluding the testimony of Hedger. Ho was a competent witness. His credibility belonged to the consideration of the jury.

Wherefore, the judgment is reversed and the cause remanded for anew trial.  