
    Baldwin v. Brogden.
    Where adefendant pleads as a set off, a note made by the plaintiff to another person, and transferred to him, the plaintiff will not be permitted to prove such set off void, as being given for a gambling consideration, without re* plying such defence specially.
    In the Circuit Court of Pike county, I. M. Brogden brought an action of assumpsit against B. Baldwin, on a promissory note made by him, for #109 payable to one D. W. Edgerly or bearer, which by delivery had been transferred to Brogden. The defendant among other pleas pleaded as a set off, that he held a note for a larger sum made by the plaintiff to one Baker, or bearer, which had been duly transferred to him by delivery before the suit was brought, &c. No replication was filed to this plea, and in fact no issue was formally joined. At November term, 1827, a trial by jury was had. The defendant proved his possession of the note pleaded by him as a set off, and that it had been transferred to him before the suit was brought The plaintiff offered evidence to prove thatthe note pleaded &g a get was g;ven for a gaming consideration contrary to the statute; to this evidence the defendant objected, but the Court overruled the objection and admitted the testimony, and the jury found for the plaintiff the amount of the note sued on and interest.
    The admission of this testimony was the error assigned.
    Goldthwaitb, for the plaintiff in error.
    Thorington, for the defendant.
   By THE CHIEF JUSTICE.

The plaintiff below should have replied to the plea of set off, thatthe note was given for a gambling consideration. This would have given sufficient notice to the defendant, and he could have been prepared to meet the objection, but it was surely improper to receive the testimony without such a replication

Judgment reversed and cause remanded

Judge Crenshaw not sitting.  