majority">Saffold, J.

The action in the Court below, was assumpsit for work and labor, &c. by the present plaintiff, against the defendant as executor of Payne, The plea was the general issue, accompanied by a notice of set-off. To support the set-off, as appears by the bill of exceptions, the defendant offered in evidence a note for one hundred and forty-four dollars, made by John Hudson, the plaintiff, payable to Lewis Hudson, and endorsed -with an assignment as follows : “I sign the within, for value received, Feb. 16th, 1826' — Lewis Hudson.” This date was anterior to the maturity of the note, and the note fell due sometime before the commencement of this suit. To the admissibility of this evidence, the plaintiff objected, and moved the Court to exclude it. The Court overruled the motion, and permitted the evidence to go to the jury. Afterwards, in the progress of the trial, the plaintiff proposed to introduce evidence of a total failure of the consideration of the said note, which being objected to on the part of the defendant, was refused by the Court, to which decisions the plaintiff excepted.

The jury rendered a verdict in favor of the defendant; and certified that the plaintiff was indebted to the defendant, the sum of one hundred and forty dollars and seven cents; on which the Court rendered judgment, that the plaintiff should recover nothing, &c. and that the defendant recover his costs, &ci and that a sci fa. issue in favor of the defendant — which having issued accordingly, the plaintiff, (then defendant) in the sci. fa. demurred, and was overruled; and upon motion of the plaintiff, in the sci. fa. the Court rendered judgment that the conditional judgment of the previous term, be then made fma'I, &c.

*239The original and present plaintiff, having sued out this writ of error, assigns as causes, among others—

1. That the Court below, in the progress of the trial, permitted the note assigned or endorsed, as stated, to go to the jury, as evidence of set-off.

2. That the Court refused to permit the plaintiff, on the trial below, to introduce evidence of a total failure of the consideration of the note offered as a set-off, under the general issue and notice.

3. That the Court rendered judgment, for thede--fendant below, that \sci. fa. issued upon the certificate of thejtiry.

1. The record does not state any specific objection as having been urged against the admissibility of of the note as evidence. The objection appears to have been general. But in this Court, it is insisted, that there ought to have been proof of the execution of the note by the plaintiff, of the genuineness of the assignment, and that it was made at the time it bears date, or, at any rate, before the institution of the suit; that it should also appear whether it was assigned to the testator, or to the defendant as his executor; and further, that it was inadmissible for the reason that when given in evidence, the assignment remained blanls as to the assignee. Which of these specific objections, or whether either, was brought to the notice of the Court below, does not appear. It may be, (as insisted by the defendant’s counsel) that the decision of the Court was never required on either — that some different and untenable objection alone was made. Admitting, if the objection was made, that the note was-inadmissible without proof of its execution, and that the assignment was made before the institution of the .s.uit, yet it may be that the plaintiff, *240tacitly or impliedly, waived the necessity of it — the same may be said respecting the necessity of filling the endorsement with the name of the assignee, and any other particular objection, that might have been taken

Respecting the necessity of offering proof of the hand writing of the endorser supposing the exceptions to have been sufficiently taken,. I am of opinion that no such proof could legally have been required, unless the genuinenesss of the assignment had been put in issue in the manner prescribed by the statute. The language of the statute is, “that when any suit shall be instituted, by any person or persons, as assignee or assignees,, of any bond or other writing, it shall not be necessary for the plaintiff or plaintiffs to prove the assignment or assignments, unless the defendant or defendants shall annex to the plea denying such assignment or assignments, an affidavit stating that such defendant or defendants verily believe that someone or more of sueh assignments was forged, or majie oath to the same effect in open Court, at the time of filing such plea.”a Here under the general issue, notice had been given to the plaintiff that the note (describing it) would be offered- as a set-off. This was entirely equal to a special plea, containing the same matter. It apprised the plaintiff as fully as a declaration could have done, of the claim which he was required to admit or resist — in other words to defend.

In relation to this note,- the situation of the parties were substantially .changed, the plaintiff was virtually and technically sued on the note by the defendant — -the former would not deny the assignment on oath, according to his belief, and which only is re-*241quircd by the statute iu any ease. The injury or inconvenience would, in most cases, be the same whether the proof be required from the plaintiff or defendant, to avoid which must have been the intention of the legislature. I think the spirit and equity of the statute apply equally to endorsements on a note when offered as a set-off; but as a different decision has been made during the present term of this Court, (Cass vs. Northrop,) I will not further moot the question. And for reason of the uncertainty of the exceptions referable to this assignment, and beaause the next is sufficient to dispose of the case, the Court declines the expression of any definite opinion on this.

2. Was the evidence of the failure of the consideration of lire note properly rejected ? If it was, it can he alone on the principio that the right of resistance or defence, was greatly restricted from the circumstance that the remedy on the note was prosecuted in the form of a set-off instead of an original action. The doctrine is, that under-the general issue, the defendant may give in evidence the insufficiency or illegality of the consideration; infancy, lunacy or coverture, at. the time, of contracting; and a variety of other matters, which in effect admit that a contract was made, but deny that it was, or is, obligatory on the defendant.a Suppose the relation of the parties changed, and that the note had been made the foundation of an .original suit by Tindall agaiust the maker, then the defendant would, under the general issue, have been clearly entitled to the benefit-of the total failure of the consideration ; can the mere change, in the form of the remedy, .vary the rights of the parties, or the law of the contract.' The statuteb provides, " that in all *242actions to be commenced on any assigned bonds, promissory noto, &c. the defendant shall be allowed the .benefit of all payments, discounts and sets-off,.made, had, or possessed against the same previous to notice' of the assignment, any law, &c. to the contrary not - withstanding.”

The decision of this Court, in the case of Baldwin vs. Brogden,a would appear to countenance the rule adopted by the inferior Court in this case. It was there held, that where a defendant 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 replying such defence specially.

In support of this decision but little reasoning is employed, nor is any authority cited. The case was, at least, nominally different from this; there the set-off was specially pleaded — here, it was offered under the general issue and notice. It is suggested that the Court, in the former case, (and which consisted of but a bare quorum,) conceive that the difference in the formi.of the issue, authorised a different rule of decision, such as they adopted. Whatever may have been the views of the Court at that time, the present Court are unanimous in the opinion, that the evidence offered by the plaintiff to impeach the consideration of the note introduced as a set-off, was admissible ; and that in the rejection of it; the Court erred; and that on the authority of recent decisions of this Court, and the references therein made, the evidence would have been equally admissible, if offered to establish only a partial failure of consideration. And my own opinion is, that the defence against the note was alike *243available, whether the note had been given in evidence under a plea of set-off, or the general issue and notice; that in neither case was a special replication necessary. In this opinion, probably a majority of the present Court would concur. v

3. It is believed to have been unnecessary and irregular for the Court below, to render any judgment or order for the issuance of a sci. fa. on the certificate of the jury in favor of the defendant. The amount certified stood as a debt of record, on which, without further authority, the defendant was by the statute of defalcation, in force at the commencement of the suit (and which governed the case,) authorised to take out a sci. fa. unless the debt was paid without delay. Whether the judgment, or order, for the sci. fa. should only be regarded as surplusage, not vitiating the judgment, or otherwise, is unimportant to this decision, as the law, in this respect has been modified by an act of 1827, ’28, which will govern subsequent suits; and as the previous assignment is considered fatal to this judgment.

Other causes have been assigned for error, one of which, being for matter beneficial to the plaintiff, he can claim no advantage from it. The others relate to the proceedings and judgment on .the sci. fa. whictu we regard as a distinct suit and not subject to revision on this writ of error.

On the second assignment alone, let the judgment be reversed, and the cause be remanded.

Dig. 189.

1 Chit. P. 470,'1—T. Pr. 591

Aik.D.69

2 Stewarts Rep. 1.

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