majority">Mr. Justice Breese

delivered the opinion of the Court:

This was an action of assumpsit containing two counts upon two promissory notes, and the common counts. The pleas were non-assumpsit, and two special pleas substantially the same, alleging that the notes were given by one Hiskett, as principal, who had not been served with process, and the defendant, as surety, for the rent of- certain land for the first year in advance, and that Hiskett was evicted before the termination of his lease, wherefore the consideration had failed.

Issue was joined on these pleas, and there" was a trial by jury and a verdict for the plaintiff, for which the court rendered judgment.

To reverse this judgment the defendant appeals.

The material fact in issue between the parties was the eviction. The lessee, Hiskett, the principal in the note, was examined as a witness, and he proves nothing of the kind. The inference from his testimony is, that Brown’s removal there was with his consent and approval, and he testifies that he voluntarily gave up to him some of the rooms in the house, and soon after he left the premises, about the first of' March. Several payments have been made on the notes, which are a pretty clear admission of their validity.

A point is made by appellant that the court refused to allow him to read to the jury his special plea, in which is an allegation that the lease of the premises was for the term of three years, which fact was not controverted by plaintiff’s replication, and, therefore, stood as an admitted fact, of which the defendant had a right to avail before the jury. The court, should have permitted the defendant to make every legitimate use of the pleadings in the cause, but, although it was error to refuse it, the judgment will not be reversed for that reason, for the fact could have made no difference in the finding, as the proof is so conclusive there was no eviction.

The judgment is affirmed.

Judgment affirmed.

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