¶1 The question presented by the pleadings does not admit of an argument. We observe that the case was tried before the decisions of the last term of this Court were published,
¶2 . and we presume that the counsel for the defendant was of the opinion that the Code of Civil Procedure applied to this suit, and that defences might be introduced as counter-claims, which had heretofore been excluded. We do not intimate that the defence here attempted to be set up, would avail under the provisions of the Code; we only say that it certainly could not be entertained in the present.suit. There is no allegation of fraud in the factum, and the bond was “assigned to the plaintiff for full consideration and without notice of the claim of defendant; and we are to take it that it was assigned before it fell due.
¶3 The evidence in regard to the consideration of the bond was properly rejected by His Honor.
¶4 Per Curiam. Judgment affirmed.