¶1We are of opinion that both the pleas in this record were bad. The substance of both pleas is, that the note declared on was given in consideration of the assignment of another note, which had been given by one Higly to the plaintiff; and that that note was given without consideration, and was therefore void, while the plaintiff fraudulently represented that it was good and collectable, and hence this note was given without consideration. These pleas do not show a want or failure of consideration. For aught that appears here, Smith, to whom the first note was assigned, may have collected the full amount of it, and even assuming that he has not already collected that note, the facts shown would not constitute a defense to that note, in an action by Smith against Higly upon it. There is no pretense that there was any fraud in procuring the execution of that note. All that is shown is, that it was given without consideration. This is not sufficient to constitute a defense to a note in the hands of -an assignee. In addition to that, it must be shown that the note was assigned after it became due, or that the plaintiff knew that it was given without consideration. Neither of these facts are shown, and, in this case, if the last were shown, it would destroy the defense altogether, for if Smith knew that the note was given without consideration, he then took it at his own risk, and we are by no means clear that the same consequences would not follow, if he took it after it was due, with that taint of dishonor upon it.
¶2Again, by these pleas, the defendants are attempting to rescind the contract by which the Higly note was assigned to Smith. They could not do this without putting Doty in statu quo. In order to do this, they should have brought the Higly note into court with their pleas, re-assigned, or with an offer to re-assign.
¶3We are of opinion that the demurrer was properly sustained, and the judgment must be affirmed.
¶4Judgment affirmed,.