
    Spears and Wife v. Featheringill.
    
      Friday, June 8.
    APPEAL from the Johnson Court of Common Pleas.
   Per Curiam.

Suit on a note given by the wife while sole.

Answer in three paragraphs. The second and third were stricken out on motion of the plaintiff They appear in the transcript, but were not made a part of the record by bill of exceptions. We cannot consider them, as they are not properly before us, as we have often decided.

F. M. Finch, for the appellants.

G. M. Overstreet and A. B. Hunter, for the appellee.

The first paragraph of the answer was a failure of consideration, in this, that the note was given for lands sold by plaintiff to the female defendant; that at the time of the sale, said plaintiff had no title to said lands (describing them), nor has he now, nor has he at anytime since had.

Reply, denying that the consideration of the note was the land described in the answer.

A motion was made to strike out the reply, because it did not meet the whole answer, or take issue thereon. It was properly overruled. It was immaterial whether the plaintiff ever had title to the lands described, if the same were not the consideration for the note sued on.

There was an averment in the complaint, of the marriage of defendants, which was not denied; no proof was, therefore, necessary upon that point.

The pleadings did not put in issue the title to lands, so as to oust the Common Pleas of jurisdiction. Harvey v. Dakin, 12 Ind. R. 481.

The judgment i’s affirmed with 5 per cent, damages and costs.  