
    Moore and Another v. Shockley.
    Suit upon a note, given for the purchase money of land. Answer: that a deed was to have been made on the payment of the note, and that it had not been made or tendered. The written agreement of sale was neither pleaded nor proved.
    
      Held, that though a good defense ma;y have existed, it was not got before the lower Court, so as to be noticed on appeal.
    
      Friday, December 14.
    APPEAL from the Howard Common Pleas.
    
      J. W. Robinson, J. W. Gordon and J. A. Beal, for appellants.
    
      H. A. Brouse and R. Vaile, for appellee.
   Per Guriam.

Suit by an assignee of a note, against the maker. Judgment for the plaintiff.

It appears that David Moore sold a piece of land to Hurly ; that Hurly had not received a deed for the land, and still owed on it $140. It further appears that Hurly sold to S. O. Moore, giving him some kind of an instrument in writing, and receiving from him the note sued on, which Hurly assigned to the plaintiff.

S. G. Moore made an effort to defend against'the suit upon the note, by showing that under the agreement for the sale of Davids land to him, by Hurly, he was to have a deed on payment of the purchase money, and it is probable that a good defense existed, but it was not got before the Court; for neither the agreement of sale between David Moore and Hurly, nor between Hurly and S. 0. Moore, was either pleaded or proved, so as to appear in the record, nor any excuse therefor shown; and we can not say what the terms and conditions of them were. Perhaps they showed no condition precedent to the payment of this note. They should have been in the record, and spoken for themselves.

The judgment is affirmed, with 1 per cent, damages and costs.  