Charles Peck, appellant v. William Boggess, appellee, 1 Scam. 281

Smith, Justice, delivered the opinion of the Court: This was an action on a promissory note assigned to the plaintiff. The defendant pleaded several special pleas of want of and failure of consideration, and fraudulent representations of the assignor, at the time of making the note ; and by which fraudulent representations the note was obtained. To the first and second pleas the plaintiff demurred, and his demurrers were sustained. On the third he took issue by replication. Leave was given to the defendant to file amended pleas, and he accordingly filed two special pleas, to both of which the plaintiff demurred.

The demurrer to tbe first amended plea was sustained, and to that of the second overruled ; and thereupon the plaintiff replied to the second amended plea, and took issue thereon. On the trial several instructions were asked by the plaintiff’s counsel, which are not important to notice, no exception being taken to any of them but one, which will be noticed; and because these instructions were entirely correct, and directly applicable to the cause. The plaintiff has made three several points, and relied on them as the grounds of error in this cause. 1.

That the demurrer to the defendant’s amended plea was incorrectly overruled. ^ 3.

That the Court erred in the last part of the instructions given to the jury contained in the following words, viz. : “ That if the jury believe from the evidence that Boggess and Mulliken made a lumping trade; that if Boggess agreed to give @615 for Mulliken’s interest, whatever it might be, (meaning the interest in the partnership concern in which they were both interested, and to which the making of the note related,) and was not deceived or imposed on by any false and fraudulent representations or concealments, then made by Mulliken, then the note is founded on a good consideration, and is binding on Boggess.” 3.

That the Qourt erred in the general instructions given. The answer to the first objection, on the demurrer, is that the plaintiff waived any possible ground he might have had by his replication; he should have stood by his demurrer, and not taken issue on the plea. The second objection on the instructions is not tenable. It is not perceived in relation to the question of law raised on this point in the cause, how more appropriate instructions could have been given. They are not only full, guarded, and precise, but particularly just and applicable to the cause and the facts.

The third ground, it is apparent, could not be raised in the cause in this Court; no objection was made to them in the Court below, and therefore none can be raised here. It is not however to be understood that there could have been any just exception to them for their character or legality. The judgment of the Circuit Court is affirmed with costs. Judgment affirmed. Breese 19.