
    Flewellin vs. Hale.
    When a note for twenty dollars under seal was given, and a covenant entered into by the payee for the delivery of the articles, which were the consideration for which the note was given:- Held, that the maker of the note, in a suit brought upon it, was entitled,'under the act of 1817, ch. 16, sec. 1, to inquire into and dispute the consideration of the note, and was not compelled to sue on the covenant.
    This was an appeal from a justice of the peace to the circuit court of Carroll county. The defendant in error sued the plaintiff in error upon a note under seal for twenty dollars, payable in cattle, before a justice of the peace., and recovered a judgment. The defendant in the circuit court, upon the trial, exhibited in evidence a contract of the plaintiff below, by which he agreed to furnish defendant with a good pair of mill stones, by the 15th of July thereafter, to be thirty and thirty-two inchest across the face. Defendant then proved, that said note for twenty dollars was given in payment for the mill stones agreed to be furnished; that plaintiff did furnish a pair of mill stones, but not of the description agreed upon, and that he refused to receive them; that they were wholly unfit for grinding, and were worthless. The circuit court charged the jury, that the defendant was not entitled to go into the consideration of said note and show that the mill stones were not delivered, or that they were not such as were contracted for, as the defendant had taken the sealed obligation of the plaintiff for their delivery, and that his remedy was upon the covenant, not against the note. The jury found for the plaintiff, the defendant having moved for a new trial, and his motion being overruled, appealed to this court in the nature of a writ of error.
    M’Kernon, M. Brown and Stoddart, for plaintiff in error.
    The errors complained of are in the charge of the court, which the plaintiff in error contends is no-t the law, and to which charge this honorable court is referred.
    The court charged the jury that the consideration could not be enquired into, &c. This being an appeal from before a justice, and for a sum under fifty dollars, it was made his duty to allow the consideration to be impeached and enquired into. Acts of 1817, ch. 86, sec. 1: Haywood and Cobbs, 203.
    It appears by the proof set out inthe bill of exceptions, that no consideration was given for the note, and that a fraud was put upon the defendant, and he put to great expense by the act of the plaintiff; hence, it was unjust that he should be allowed to cause defendant to lose, having entirely disappointed him in the contract.
    As between the immediate parties, that is, between the drawer and acceptor, the drawer and payee, and the endorser and his immediate endorsee, the want of consideration may always be questioned. See Chitty on Bills, 70, 71, note 1.
    
      B. Gillespie, for defendant in error.
    The record presents this question, that a contract was made for the sale and purchase of a pair of mill stones; plaintiff in error gave his note for twenty dollars as consideration, and took an obligation from defendant in error to deliver mill stones of certain dimensions. The note fell due and suit brought on it; the defence set up is, that defendant had not complied with their bond by delivering the mill stones.
    The court charged, that plaintiff in error having taken a personal security or contract, he must pursue his remedy on that. Under the statutes referred to by plaintiff in error, it must be an entire failure, in such a case as the present, where he had received some mill stones on trial, and which were to be replaced by others, if they did not suit Flewellen. And if these did not answer Flewellen, should he not have proved that he had given Hale notice to deliver others?
    The court charged correctly, leaving Flewellen to his remedy on the contract, as it did not appear that Hale was insolvent and unable to pay him damages. Another reason to show the parties considered these as distinct liabilities, the bond was, that the mill stones should be delivered on the 15th July, 1830, and the note did not fall due until the 1st October, 1831.
   Peck, J.

delivered the opinion of the court.

The act of assembly of 1817, ch. 16, sec. 1, has received our consideration, and is decisive of this case. The circumstance of Flewellen taking a covenant on Hale does not prevent him from inquiring into the consideration for which the note sued on had been given. If Flewellen is content to put an end to all controversy, by resisting the recovery on the note simply, why compel a suit on the covenant. True, Flewellin might probably recover more than the twenty dollars expressed m the note, but as he does not ask it it; is not the business of the court to force it upon him. The act of assembly, by its very terms, embraces the case, directs the consideration to be inquired into, and the court should have permitted it. The judgment must be reversed and the cause remanded for another trial.

Judgment reversed.  