#### Henry Wagy, appellant, v. James S. Lane, appellee.

Appeal from, Adams.

A plea, to an action upon a promissory note, which alleges that the note was made in consideration that the plaintiff, representing himself to be the owner of a tract of land, agreed to sell and convey the same to the defendant, and that neither then nor at any other time, was the plaintiff the owner of the same, and therefore there was no consideration, is bad, on demurrer.

This was an action by petition and summons, brought in the Adams Circuit Court, by Lane against Wagy, upon a promissory note. The declaration is in the usual form. The defendant filed three pleas. The first sets out that the note was made in consideration that the plaintiff, representing himself to be the owner of the N. E. S. 30, in T. 3 south, R. 6 west, agreed to sell and convey the same to Wagy; that neither then, nor at any other time, was or had the plaintiff been the owner of said tract of land; and that, therefore, there was no consideration. The second plea avers that the note was executed in consideration that the plaintiff had sold Wagy certain lands, for a certain sum, a part of which had been paid by Wagy to Lane; that the note was given to secure the residue, and for no other consideration; that neither at the time of the sale, nor at any time thereafter, had Lane title to, or interest in, said premises; and that therefore the consideration had failed. The third plea states that the note was made in consideration that at the time of making the note, Lane represented that he was the owner of a certain tract of land; that he then and there sold the same to Wagy; that Lane at no time before or since, had any right, title, or interest in or to the premises, either in possession, remainder, or reversion ; and that, therefore, the consideration had wholly failed. A general demurrer was filed to each of the pleas, and severally sustained ; whereupon judgment was rendered in favor of Lane, for the amount of the note, in debt $75, and in damages $25, and costs of suit. The cause is brought here by appeal, and the decision of the Court upon the pleas is assigned for error.

The cause was heard in the Court below, at the April term, 1840, before the Hon. Peter Lott.

J. A. McDougall, for the appellant,

cited Tyler v. Young et al., 2 Scam. 444.

O. H. Browning and B. S. Edwards, for the appellee,

cited 1 Bibb 509 ; 13 Johns. 359; 12 Johns. 436.

Smith, Justice,

delivered the opinion of the (old) Court:

The error assigned in this cash, questions the corrections of the decision of the Circuit Court, in sustaining the demurrer to the three several pleas of the defendant, of want of consideration and *238failure of consideration. The pleas are considered to be materially defective, in not stating intelligibly the contract upon which it is alleged the consideration of the note stated in the pleadings was founded. This omission is alike applicable to each of the pleas. The pleas are all, also, obnoxious, for want of precision and accuracy, and are too uncertain and vague, both in form and substance, to entitle them to a favorable consideration.

The judgment is affirmed with costs.

Judgment affirmed.