¶1Judgment affirmed, Jewett, Ch. J. and Jones, Judge, dissented.
¶2JYot Reported.
¶3Note.—The consideration of a promissory note is always inquirable into between the original parties (7 Cow. 322; 4 Johns. 296; 7 id. 26; 17 id. 301.) Under a plea of the general issue only, a total failure of consideration must be shown.
¶4*40Where a negotiation was carried on by letter between the plaintiff and defendant, by which the defendant proposed and gave to plaintiff (at plaintiff’s request), his two promissory notes, to pay the debt of defendant’s brother to plaintiff, and simultaneously with the sending the notes, requested that a sheriff’s certificate of sale, which plaintiff held, against the brother, and which had been a subject of negotiation previously, might be assigned and sent to him; and it appeared that plaintiff had made the following inquiry of defendant in a P. S. to one of his letters “ Shall I forward you on receipt of notes the ctf?” Held, on a suit by plaintiff against defendant on one of the notes, that the delivery of the certificate to defendant was a part of the original contract; arid that having received the notes and failing to deliver the certificate before suit brought, there was a total failure of consideration for the notes.
¶5The execution of the assignment of the certificate and holding it, was not equivalent to its delivery.