
    Clopton v. Pridgen.
    A plea which impeaches the consideration, either in whole or in part, of a note in writing under seal is required by the statute (Ilart. l>ig., «art. 710) to bo supported by affidavit, and a note in the ordinary form, concludin'.? witness iny hand and seal,” with the word “seal ” written in «ido of an ink scroll, is a note in writing under seal,” within the terms of the statute. (Note 04.)
    Appeal from Harrison. This was a suit by the appellee against the appellant on two notes under seal, each of the following tenor:
    “$1,120. On the first day of March next I. promise to pay R. S. Pridgen eleven hundred and twenty dollars, for value received, as witness ray hand and seal this 8th day of October, 1S49.
    (Signed) “R. J. Clopton.” [Seal.]
    The defendant pleaded, in substance, that the notes sued on were given for the purchase-money for a tract of land described in the bond of the plaintiff to make to the defendant a title to the land, which was made a part of the answer; that the plaintiff represented to the defendant that the tract contained six hundred .and forty acres, whereas it contained but six hundred acres; that the plaintiff', by his said bond, covenanted to make to the defendant a warranty title to the land on payment of the notes, but that he was unable to make title, for that since the making of the bond and notes suit has been instituted against the plaintiff by one Christie, in the United States District Court, in which suit the defendant was advised the said Christie would recover of the plaintiff the laud in question ; that his remedy upon the covenants contained in tlie bond of the plaintiff would be ineffectual by reason of the inability of the plaintiff to respond in damages, lie being insolvent; and he prayed that the plaintiff might be therefore enjoined from proceeding to enforce payment of tlie notes until the rig-lit of the plaintiff shall have been adjudicated and his title established.
    At the Spring Term, 1851, the ease was continued on affidavit of the defendant, to obtain certain evidence of record in the United States District Court at Galveston, averring that he had applied to the cleric of said court for the evidence, with a tender of tlie proper fees, in time to have liad the evidence at that term of tlie court. At tlie Pall Term thereafter tlie defendant again applied for a continuance, averring that a transcript of the record of a suit in tlie United States District Court at Galveston, between one Christie and the plaintiff, was material lo his defense, repeating substantially the same diligence to obtain the evidence as before, and that the clerk of the court at Galveston had promised to forward the transcript, but that it had not arrived, and fur!her stating what he expected to prove by the desired evidence. The court refused a continuance. The plaintiff moved to strike out the defendant’s plea impeaching the consideration of the notes, because not supported by affidavit, which motion the court sustained. There was judgment for the plaintiff, and the defendant appealed, and assigned as error the ridings of the court in refusing a continuance and in striking out the plea.
    
      M. J. Hall, for appellant.
    
      W. P. Hill, for appellee.
   Whbelbe, J.

There clearly was no error in the refusal of a continuance. It appears to have been a second application to obtain the same evidence; and t shows no other or greater diligence than that which had proved ineffectual to obtain the evidence at a former term. The application came within no rule or principle which, as matter of law, entitled the party to a continuance.

The plea which was stricken out proposed to inquire into and it impeached the consideration of the notes sued on. And to entitle the defendant to impeach the consideration of a note in writing under seal, the plea must be supported by affidavit. (Hart. Dig., art. 710.)

But it is insisted that tlie note in this case, not coming within the lir.st section of the act concerning conveyances, (Hart. Dig., art. 167,) and there being no other enactment authorizing the use of a scroll for a seal, is not a sealed instrument.

The reverse of this, however, was determined by the decision of this court in the case of English v. Holmes, (4 Tex. R., 228,) where it was held that a note having a scroll with tlie word seal written in it, appended to tlie signature of the maker, was a sealed note.

It is further insisted that it is only necessary that tlie plea be supported by affidavit when it sets up a total failure of consideration, and that under the provision o£ the act of the 3d of April, 1846, (Hart. Dig., art. 2527,) a plea of a partial failure of consideration need not be supnorted by affidavit. This distinction, however, cannot, we think, be maintained.

Note 64. — Conner v. Autrey, IS T., 427; Pierce ». Wright, 33 T., 631.

The last-cited act was probably intended to remove doubts which were supposed then to exist as to tlie admissibility of a plea of part failure of consideration in the specified cases. Such plea was doubtless admissible, as has since been determined, Mercer v. Hall, 2 Tex. R., 284,) without he statute, and the statute was merely declaratory of the law. But no doubt was entertained of the admissibility of a plea of a total failure of consideration, and lienee that subject was not embraced in the statute. Tlie statute does not purport to prescribe the form or requisites of the plea, but only to secure the right to plead. But tlie act of the 13th of May, before referred to, (Hart. Dig., art. 710,; prescribes what shall bo a requisite of a plea by which a party shall “impeach or inquire into the consideration ” of a sealed instrument; and its terms comprehend every swh plea, whether tlie matter pleaded go to the whole, or a part only of the consideration. Both statutes must be taken and construed together; and so taken they do not, it is conceived, warrant the distinction sought to be taken.

The notes sued on being under seal, and the plea impeaching the consideration not being supported by affidavit, was rightly stricken out.' The judgment is affirmed.

Judgment affirmed.  