
    J. Muggah, Administrator, v. T. M. Tucker.
    In a suit on a note, where defendant pleads a failure of consideration, the omis of proving the failure, is upon him.
    from the District Court of St Mary, VoorMes, J
    
      H. Gibbon, for plaintiff and appellee.
    
      J. B. Lea, for defendant and appellant.
   Buchanan, J.

This is a suit upon four promissory notes; two of which are for $466 66 each, and two for $6590 83 each. The defendant pleads error and want of consideration as to the two notes $466 66. He further pleads that the consideration of the notes of $6590 83 “promises in like manner to fail” ; that said notes were given for certain land, situate in the Parish of St. Mary, and that the defendant has been sued by a person who claims the said lands by a title adverse to that for which the notes were given; that defendant has been sued by another person, who claims the vendor’s privilege on said lands ; and finally, that the measurement of the land falls short, by one third, of tho number of acres expressed in the act of sale.

Plaintiff had judgment for the amount claimed, and defendant has appealed. The controversy is one of fact, in which the burthen of proof was upon the defendant. He has failed to establish a want of consideration for the notes as alleged; the party who has brought the suit against him, mentioned in the answer, proves that the suit was for other land than that which formed the consideration of the notes of $6690 83. And as to the other notes, of $466 66, it seems at least as probable, that they were given for a dwelling house and other improvements, which undoubtedly belonged to Stansbury’s estate, as that they were given, as defendant contends in argument, for the land on which those improvements were erected. As a last resort, the defendant makes a claim in this court, which is not mentioned in his pleadings, to-wit: for a reduction of about forty dollars on each of the $6590 83 notes, as being an arithmetical error in the division of the price of the property purchased, into three installments. • It certainly would seem that such a mistake has been made; but there is some confusion and uncertainty in the evidence bearing upon this point; and it is possible that, had the defendant mentioned it in his pleadings, this small apparent error might have been satisfactorily explained. After many years have elapsed, and a large portion of the price has been paid without objection, it would be giving an undue advantage to defendant, to allow him to avail himself, in this court, of a matter of this sort, without notice given in his pleadings.

Judgment affirmed, with costs.  