
    Orrin J. Rose, Plaintiff in Error, v. William E. Mortimer, Defendant in Error.
    ERROR TO COOK COUNTY COURT OE COMMON PLEAS.
    Under the general issue, it is not competent to show a total or partial failure of consideration of a promissory note.
    This was an action of assumpsit upon a promissory note. Plea, non-assumpsit, and similiter. The plaintiff below offered in evidence a promissory note, signed by defendant. The defendant then offered evidence to show a failure of the consideration, for which the note offered in evidence was given. This evidence was excluded by the court. To the exclusion of which evidence, the defendant below excepted, and assigns its exclusion for error.
    The cause was heard before J. M. Wilson, Judge, without the intervention of a jury, at September term, A. D. 1855. Judgment was for plaintiff in the court below.
    Davis and Martin, for Appellant.
    Goodrich and Scoyille, for Appellee.
   Catón, J.

This was an action on a promissory note, by an assignee, to which the defendant filed a plea of the general issue. Under this plea the defendant, on the trial, offered to prove a failure of consideration, which the court ruled out, and which is the decision complained of.

The court decided óorrectly. The right to defend a promissory note for a want, or failure, or partial failure of consideration, is conferred by the 10th section of chapter 73, R. S., and that statute requires the defence to be pleaded. There is hardly a volume of our reports, in which cases are not found, where this court has passed upon the sufficiency of such special pleas ; but I do not find that it has before been attempted to set up the defence under the general issue. The statute does.not authorize it, and the court properly ruled out the defence' offered.

The judgment must be affirmed. '

Judgment affirmed.  