¶1delivered the following opinion: I concur in so much of the opinion of the court as relates to the first plea, but dissent from that portion of it which denies to a defendant the right to defend hirñself under the plea of no consideration, or failure of consideration, where the note falls due, and is sued upon before the day fixed by the agreement for the conveyance of the laud. These pleas are given by our statute, and if the payee of the note has no title whatever to the land agreed to be conveyed, either at the time of making the contract, or at ¿lie commencement of the suit, I see no good reason why the defendant may not thus plead in bar of a recovery,'and especially as the land itself, and not the covenants in the bond, is, by the decision'of the court, determined to be the true consideration of the note.
¶2Judgment reversed.