
    MERIWETHER SUPERIOR COURT,
    February Term, 1842.
    J. N. Vanpelt & Co. vs. Elisha Kendall.
    
      Certiorari,
    
    
      la an action on a note for a wheat fan, “ if it proves to be a good one and performs well,” it is not necessary on a plea of failure of consideration for the defendant to prove that lie offered to return the fan. It is sufficient to prove that it was worthless.
    This was a certiorari requiring the Justices of the Peace to send up their proceedings in the above stated case, then lately tried before them, upon the petition of the plaintiffs, in which they alleged, that the said action was predicated upon a promissory note for the sum of Twenty-four dollars, to which the defendant pleaded both a total and partial failure of consideration, which plea, it is alleged, was supported by proof that said note was given for a wheat fan, which broke the first day it was used, and which the witness stated he considered worth nothing ; but the error complained of was, that the defendant had kept the fan in his possession for several months, and had made no offer to return it; also, that the Court had permitted the defendant’s counsel to conclude the argument in the cause, notwithstanding he had introduced testimony, and that the Jury had returned a verdict for defendant. The return of the Magistrate sustained the allegations as to the failure of the defendant to prove a return'of the fan, and also as to the fact of the defendant’s counsel having the conclusion of the rgument before the Jury. But a copy of the note on which the btion was founded, was attached to the return, which reads as foll«rs: “By the twenty-fifth of December next, I promise to pay J. Niyanpe.lt & Co. twenty-four dollars for a wheat fan, if it proves to be .good one, and performs well, for value received of them, this 17th Ma>,h, 1840. E. Kendall.” 1
   Tfc Court is of opinion, that inasmuch as the note was conditional upon its face, that the defendant was not liable to pay the money, unless the fan had proved to be good and had performed well, in terms of said note | and it having been proven on the trial that it was of no value, it was not necessary, to enable the defendant to set up his defence, to prove a return or offer to return said fan. Upon the second ground of error complained of, the Court is of opinion, that the Court did commit error, in awarding to defendant’s counsel the conclusion of the argument; but this being a matter of practice and not an error of Law, and it being a matter which could, under the circumstances of this case, have done no injury to the party plaintiffs, it is not considered a sufficient ground for sustaining the certiorari. It is, therefore, ordered, that the certiorari be dismissed, and the proceedings below be affirmed.

McMath, for Plaintiffs. Underwood, contra.

WILLIAM EZZARD, j. s. c. c. c.  