
    WYNNE vs. WHISENANT.
    [ACTION ON • PROMISSORY 'NOTE, BY PAYEIS AOUNST MAKER.] '
    1.- Duplicity in jilea: — A plea which is tiemble, -is not demurrable.on that ' account.
    2. Illegality of consideration of note. — If the consideration of a note is partly illegal, it avoids'the whole note; but the maker, when sued on the note, may nevertheless waive'the illegality, and insist oma failure of the consideration.
    3; I'renmuplion in favor of judgment-. — When no pleas appear in the record, the appellate court will presmue-tliat proper pleas'wore'filed to lot in' the evidence which the primary'court: admitted..'
    Appeal from the.Circuit -Court of Calhoun.
    Tried before the Hon. S.-LX Hale. ..
    This action was brought-by M. W-/ Wynne, against W. J. Whisenant; .and was founded on-the defendant’s promissory note for $866 66, dated October .16, 1854, and payable on the 1st day of May next after date, with interest from date. No pleas- appear in the record.. On tbe trial before the jury, as the bill of exceptions shows, after the plaintiff had read in evidence the note described, in diis-complaint, “defendant proved -that, a short time before the note was executed, .there.had .been a fight -between him .and Ms two sons, on the one side, and the plaintiff on.-the other ; that the plaintiff .had sustained considerable personal injury in the fight, and had -afterwards sued onto, warrant against the defendant and Ms two sons, before a justice of the peace, for an assault and .battery; and then- introduced some evi-r. deuce tending to show, that tlie consideration of said note was an agreement between plaintiff and defendant, to the effect that plaintiff would stop said prosecution, and -would not attend the circuit court, but would go out of the county. The plaintiff introduced testimony tending.to prove, that the sole consideration of said note was. the injuries inflicted on his person in the fight. The defendant proved that, at the next term of the circuit court for said county, he and liis two sons were indicted for said fight; and then proposed to prove, that plaintiff did attend said term of the court, and was examined as a witness in behalf of the State'Oil the trial* of said indictment,” To each portion of this evidence the plaintiff objected, as illegal and irrelevant? .the court overruled his objections, and he excepted. The defendant then proposed to prove, “ that in the settlement made between him and the plaintiff, out of which grew the note now sued on, other matters tham the said fight were included; stating at the time, that he did not propose to prove what those matters were, but to show that all matters between them were settled.” The plaintiff objected to this evidence, as illegal and irrelevanty and reserved an exception to the overruling of his objection. The several rulings of the court on the evidence, to which exceptions were reserved, are now assigned as errors.
    Jas. B. .Martin, for .appellant.
    Alex. &. Jno. .White, ceñirá.
    
   STONE, J.

If the defendant in this case had pleaded, that the consideration of -the note sued on was, that the plaintiff should abandon tlie prosecution he had instituted against the defendant- — should leave tlie State, and not appear as a witness on tlie. trial, and tbat the plaintiff', in violation of bis agreement, had appeared and given evidence .on the trial against defendant, — the plea would, perhaps, be double, and unnecessarily prolix ; but a demurrer to it would not be sustained. Tlie plea being in this form, no one, we apprehend, would gainsay the right of the defendant ■to introduce evidence in support of each averment in the plea.

Again : The case of Kirkman v. Eaton, (35 Ala. 272,) is, at least, an implied authority for the proposition, that •one who has a valid defense to an executory contract, on the ground of -illegality of consideration, may waive that ■•specific defense, and rely on the averment that the aggregate mentium — the concurrence of minds between the contracting parties — has never been consummated. In the case cited, although the note was executed to be wagered, and was wagered on the result of an election that was pending; yet the plaintiff recovered in the court below, and the judgment was affirmed in this court. •

The plaintiff having declared specially on the note in this case, which note purported to be signed by the party sought to be charged, he made out a prima-facie case for recovery when he read his note in evidence. — Code, 2278-9. It was competent for defendant, under an appropriate issue, to prove that the consideration was, either in whole or in part, illegal; or, waiving that, to show that the plaintiff had violated his part of the agreement, which furnished the consideration of the promise. If the consideration was in part illegal, it avoided the whole note.— 1 Story on Contracts, §§ 569, 459 ; 1 Parsons on Contracts, 365, note.

In the present record there are no pleas. In such case, it is our duty to presume that proper pleas were filed to let in the evidence. — -Shep. Digest, 572, § 152.

The first and second exceptions of defendant are covered by what we have said above. There is nothing in the third exception. It was certainly permissible for either party to prove the real consideration of the note.

■Judgment-affirmed.  