#### James R. Ward, Appellee, v. Frank H. Schafer et al., Appellants.

Gen. No. 15,008.

Negotiable instbuments—how want of consideration pleaded. By section 9 of chapter 98, which was not repealed by the Negotiable Instrument Act of 1907, the defense of want of consideration must be specially pleaded in an action of special assumpsit on a note.

*441Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Arthur H. Frost, Judge, presiding.

Heard in this court at the October term, 1908.

Affirmed.

Opinion filed March 31, 1910.

William J. Stapleton, for appellants.

James R. Ward, for appellee;

Mr. Justice Baker

delivered the opinion of the court.

This is an appeal of the defendants from a judgment on a directed verdict for the plaintiff in an action of assumpsit. The declaration consisted of a special count on a promissory note of the defendants payable to the order of the plaintiff, and the common counts, and with the declaration was filed a copy of the note on which the action was brought. The only plea was non assumpsit. On this state of the pleadings the defendants could not question the consideration of the note. Dickinson v. Citizens National Bank, 70 Ill. App. 405, and cases there cited.

The evidence offered by defendants showed that the check for $400 delivered by defendants to plaintiff was applied as directed by the defendants. The amount due on the note was agreed on by the parties in open court. There being no controverted question of fact, a verdict for the plaintiff for the amount so agreed to be due on the note was properly directed, and the judgment is affirmed.

Affirmed.