
    12150
    UNION SAVINGS BANK v. HUBBARD
    (136 S. E., 481)
    1. Bills and Notes — Answer Pleading Failure op Consideration to Note Sued on Raises Issue por Jury.' — In action on a note, answer pleading failure of consideration raises issue of fact which defendant is entitled to have submitted to jury.
    2. Affidavits — Trial Court’s Deciding Issue op Fact on Conflicting Affidavits Held Error. — Trial Court’s deciding issue of fact raised by pleadings on conflicting affidavits held to constitute error.
    Before Henry, J., Marlboro,
    December, 1925.
    Reversed.
    Action by Union Savings Bank against Mrs. Alice B. Hubbard. From an order striking out answer of defendant, she appeals.
    
      Mr. N. W. Edens for appellant
    cites: Maker of note not bound by conditional delivery until happening of condition: Civ. Code, 1922, Sec. 3667. Failure of consideration for note <as defense against one not a holder in due course: Civ. Code, 1922, Sec. 3679. Objection to sham defense raises question of fact for Court: 6 S. C., 113. Answer denying any material allegation cannot be stricken out as sham: 43 S. C., 17. Cases distinguished: 130 S. C., 44; 101 S. C., 185; 100 S. C., 196; 97 S. C., 389.
    
      Mr. J. K. Owens for respondent
    cites: Objection to 
      
      sham defense raises question of fact for Court: 130 S. C., 44.
    January 31, 1927.
   The opinion of the Court was delivered by

Mr. Chief Justice Watts.

The exceptions and grounds .of appeal question the correctness of the rulings of Judge Henry in dismissing the answer .of appellant on the ground that it was sham, irrelevant, and does not constitute a defense. The answer pleads failure of consideration, and that was an issue that appellant was entitled to have submitted to a jury.

This Court has decided in several cases that to decide an issue of fact on affidavits in most cases is unsatisfactory.

Here we have an issue of fact raised by the pleadings decided by his Honor, on most conflicting affidavits.

His Honor was in error, and the order appealed from is reversed.

Messrs. Justices Cothran, Blease, and Stabler, and Mr. Acting Associate Justice R. O. Purdy concur.  