
    Farmer v. Fairman.
    Saturday, January 11.
    If to a suit on a promissory note, the defendant plead the want or failure of consideration, the plaintiff may reply generally that the consideration had not failed, in manner and form as alleged in the plea.
    ERROR to the Tippecanoe Circuit Court.
   Blackford, J.

Debt by Fairman against Farmer and one Cole, on a promissory note payable to Harter, and by him assigned to the plaintiff The writ was returned “not found” as to Cole, and the return was suggested on the record. Farmer pleaded three pleas. 1. Nil debet. 2. That the consideration of the note was the bargain and sale by indenture of a certain tract -of land by the payee to the defendant and Cole, in which indenture the vendor covenanted that he was' seised in fee, and had good right to sell, and that the land was free from incumbrances; that the plaintiff had no title, &c. 3. That the consideration of the note was the same as mentioned in the second plea; and that the land was incumbered by judgments and other liens to its full value, &c. Replications to the special pleas, that the consideration had not failed in manner and form as alleged in the pleas. General demurrers to the replications and the demurrers overruled.

A. S. White and R. A. Loclcwood, for the plaintiff.

A. Ingram, for the defendant.

The cause was tried on the general issue. Verdict and judgment for the plaintiff.

It is- contended that the replications demurred to are insufficient. The special pleas show a failure of consideration ; and to such pleas in a suit on a promissory note, the replications in question are good. Mitchell v. Sheldon, 2 Blackf. 185. The defendant says, the pleas show that there was no consideration for the note. Were that the case, the replications would still be valid. 'Pleas, whether of failure of consideration or of no consideration, admit the promise and avoid the effect of its non-performance by matter of excuse. In such cases, a general denial of the matter of excuse is sufficient. Griffin v. Yates, 2 Bingh. New Cas. 579.

Per Curiam.

The judgment is affirmed with costs.  