No. 68—2182.

#### Daniel H. Tolman v. Charles W. Requa.

This was a suit in assumpsit, brought by Daniel H. Tolman against Charles W. Requa, upon a contract of warranty. A trial was had before the court below without a jury, resulting in a finding and judgment for the defendant. Ho questions of law were raised at the trial, and the only ground upon which we are now asked to reverse the judgment is, that it is unsupported by the evidence. The guaranty in question is one indorsed upon a promissory note, executed by one Allen, payable to the order of the defendant. In addition to a plea of non-assumpsit, the defendant filed two special pleas, somewhat inartificially drawn, and apparently intended as pleas of fraud and circumvention in obtaining the execution of the note and guaranty. While it is very clear that the facts pleaded do not amount to fraud and circumvention in obtaining the execution of said instruments, the court is of opinion that they are sufficient to show fraud in the consideration "as well as want of consideration, and that sufficient facts are stated to make such defenses available against an assignee of the note. The evidence is conflicting, and in some respects confused and uncertain, but the court is of opinion it tended to support the defenses made by the pleas, and warranted the court below in finding the issues for the defendant.

Judge below, Sidney Smith.

Attorneys, for appellant, Mr. John C. Riohbebg ;

for appellee, Messrs. Teaming & Thompson.

Opinion filed Jan. 6, 1886.

Opinion Per Curiam.