
    HANSFORD & SANDFORD vs. MILLS.
    1. Where several notes are given to a plaintiff, for a consideration which, with the assent of the defendant, fails in part, the failure cannot be set up against all the notes — plaintiff may recover on the first note sued on, the amount due him for past performance.
    Error to the Circuit court of Autauga.
    Assumpsit — before Shorfridge, J.
    
    The action in the court below, was brought by the defendant in error, against the plaintiffs, on two notes, of thirty dollars each. On the trial, as appeared from a bill of exceptions, it was proved that the notes sued on, with others, were given for a negro to one Tabor, from whom the plaintiffs received it; that in August, of the same year, the negro was taken from the defendants below, with their assent, by an agent of Tabor; it was also proved, that the hire of the negro for a year, was worth more than one hundred dollars. The defendants below moved the court to charge the jury, that inasmuch as they were not bound for the hire of the negro, after Tabor took possession of her, that there being a failure of consideration, it could be pleaded to either note given for said hire, although all the notes had been assigned to other persons. The court refused this charge, and charged the jury, that the defendants could not set up the failure of consideration to the first note sued on, but that judgment must be obtained for the amount the defendants actually owed for the hire of the slave.
    
      Dargan, for plaintiffs in error.
   ORMOND, J.

The charge of the court is undoubtedly correct. The negro, being taken away from the plaintiffs in error, by their consent, and that of the owner, they were not liable for the hire of the slave, for that portion of the year which had not expired; but there can be no pretence for resisting a recovery, for the amount actually due. It is not certain, that any claim will ever be asserted for the resiiue of the hire — and should it be attempted, the plaintiffs in error can defend against it, by proving that they have paid all the hire for which they are responsible.

Let the judgment be affirmed,  