
    LOFFLAND v. RUSSELL.
    Fraud — want of consideration — mistake—evidence—court and jury.
    If a note was obtained by fraud, or given for a consideration, which lias failed, or by mistake, the defence may be made in a suit between the parties.
    Evidence tending to prove any aspect of the issue, should be admitted to the jury.
    A court should not substitute its own judgment for that of a jury, on facts.
    
      Error to the Common Pleas. Russell brought assumpsit against Loffland, on the following due bill: “Due Wayne Russell, twenty days after date, $15.50, for value received.” Plea, non assumpsit,, with notice, that the note was obtained by fraud.
    On trial, the plaintiff read the due bill in evidence, and rested his case. Loffland then offered to prove, that he had agreed with Russell to burn a pit of charcoal for him, and found him the wood and an assistant, and that some time afterwards Russell called on him,, said he had burned the coal, and demanded a note, and placing confidence in his representations, having been absent and being ignorant of the facts, he gave his due bill, which is the same in evidence, and that in fact Russell never burnt the coal, and had wasted the wood. This evidence was objected to by Russell, and ruled out by the court, on the ground that if admitted, it would not warrant the jury in finding fraud, or want of consideration, of value sufficient *to avoid the note. For error in ruling out the evidence, it [439 is now sought to reverse the judgment.
    
      Parker and Burr for the plaintiff in error.
    
      Purdy contra.
   WRIGHT, J.

If the note was obtained by fraud, or given for a consideration, which had failed, by mistake, or without any consideration, either state of things might be shown, and would constitute a complete defence, as between the parties. If the evidence offered and ruled out, then, tended to prove either assumption, it was competent, and ought to ha»ve been admitted to the jury, and the effect of it left to them. We think the evidence to prove them admissible. The court, therefore, erred in ruling out the evidence, and substituting its own judgment of the facts, for that of the ÍU1T-

The judgment is reversed, and remanded for future proceeding.  