
    Adam vs. Hodgen.
    firror to the Grayson Circuit; Pauli. Booker, Judge.
    Assumpsit,.
    Case 39.
    October 12.
    
      Practice■, Assignor and Assignee, Pleading by Defendant, "Evidence.
    
    When a spe-is teHn aftet.a • general issue pleaded, the ^discretion* either to per-it to be anc¿* „£]e”°ts the record proves this have^been6 improperly exercised, cr-ot s
    The right of ,tIlc assiSMt; gainstthe asj signor, rests on re% fhc^efend’t* as assignor; therefore any Í7hich tends to disprove that vespon-admissible”1* under the general issue;
    Fviaon that the as-signee had Slven tlle o!lv under an agreement t0 receive ciseTn lieu of performance; and had refused to acance^of^the obligation itself, on the duo l inad-miss’íble urial issue.
   Opinion of the Court, by

Júdge O wsi/ev.

THIS was an action of assumpsit, brought by Hod-gen, to recover of Adam, his immediate assignor of an obligation which had been executed by J. Hedges to G. L. Rogers, for the payment of one hundred and fifty dollars in horses, and by Rogers assigned^ to Adam, and by Adam assigned to Hodgen, before the horses became payable.

The declaration sets out the obligation, together with the several assignments thereon, and avers the exercise of due and proper diligence by suit against the obligor, Hedges, and the failure to collect of him the amount, or any part thereof,

Non assumpsit was pleaded, and the trial was had in the court below upon that issue.

Previous, however, to calling the jury to try the issue, a special plea in bar of the action was tendered by Adam; but the plea was rejected by the court, and by the assignment of errors (he decision of the court not allowing the plea to be filed, is questioned.

In responding to this question, it is not necessary that wo should examine the validity of the rejected plea; for, admitting it to contain sufficient matter to bar the action, as it was notpresented to the court until a subsequent term after the general issue was pleaded, the court unquestionably possessed a discretion either to permit it to be filed or not; and the record exhibits nothing to show that discretion to have been improperly exercised. We cannot, therefore, say that the court erred in excluding the plea.

But we are of opinion that the court erred in not allowing evidence offered by Adam, to go to the jury. The right of Hodgen to recover, rests upon the responsibility of Adam as assignor of the obligation which was given by Hedges to Rogers, and of course any evidence which tends to disprove that responsibility, was competent on the trial of the general issue. The rejected evidence, we think, was fully calculated to produce that result. The evidence went to prove, that byán arrangement made between Hodgen and Hedges,, a new crédit was given to the latter, under an agreement with ^le former to receive the amount, of the obligation in carpenter’s work, ánd that, in consequence of that arrangement; Hodgen actually refused to accept from Rogers the amount of the obligation in horses; on the day,and at the place the obligaiion required payment,

Crittenden, for plaintiff; Hardin, flagging &c. for defendants

The evidence ought not; therefore, to have been ex-eluded, and, consequently, the judgment must be reverse<f with costs, the cause remanded to the court below; and further proceedings there had-, not inconsistent this opinion’.  