
    Maupin & Jameson, impleaded with Boon, v. Smith.
    In suit by assignee of a note payable “without defalcation,” but not negotia-» ble like an inland bill of exchange, for want of the words “negotiable and payable,” the payor cannot plead a set-off, though he may plead a total failure of consideration.
    In suit by as-signee of a note payable “without defalcation,” but not negotiable like an inland bill of exchange, for worls°«nego-H^leaudpayable/tthepay- or cannot thongh he may plead a total failure of consideration.
    
      Error to Franklin Circuit Court.
    Polic for Defendant.
   Opinion of the Court, delivered by

Scott, Judge,

William Smith, as assignee of James Norfolk, broughtsuit against Maupin, Jameson, &c., on the following promissory note:

Six months after date we and each of us promise to pay James H. Norfolk, or order, $1286.10, without defalcation, for value received.
Walter C. Maupin,
Wm. Jameson,
Sydney S. Boon,

The note was assigned to Smith, the plaintiff. The defendants, amongst other things, set up as defence to the action, a total failure of consideration, and a set-off due by the payee to one of 'the defendants before the assignment. Demurrers were entered to the pleas containing these several defences, and the demurrers sustained. Judgment was rendered against the defendants below.

The note sued on could not be negotiated like an inland bill of exchange, within the meaning of the 6th section of the act concerning bonds and notes, for want of the words negotiable and payable. (See 6 Mo. R., Austin and Haines v. Blue.)

According, however, to the case of Waddle v. Collins, 4 Mo. R., 452, the note described in the petition is within the: fourth section of the act above mentioned, it being payable' without defalcation, consequently the makers are- not allowed any set-off against the assignor.

But the third section of the same act declares, that the de-fence of the maker shall not be changed by the assignment, but he may make the same defence against the note in hands of the assignee, that he might have made against the assignor. The defence ofa total failure of consideration or want of consideration, setup by the maker wasallowable under this section, and the court erred in sustaining a demurrer-to the plea in which such defence was contained.

There was no -error in the court in refusing to quash the writon account of the Variance between it and the declara-i • • • i t „ _ ,, tion, and in permitting an amendment. Jones v. Cox, 7 Mo. R. 174. Judgment reversed.  