#### Anonymous.

HpHIS was an action upon a promisoty note, and there was J1- judgment by default, and the jury being now sworn to assess damages. ' ■'

Tmjhrlor the dalVnclant

stated to the court that~the facts of this cause were, that a race was made between the plaintiff and defendant and the notes of each placed in the hands of a third person to be delivered to the winner; that it was an article of the race, if either of the horses should be disabled so as to be incapable of running on the day appointed lor the race, that then the bet should be void and the notes returned to the makers ; that the horse of the defendant actually did become disabled on the day of the race, and was adjudged to be so by one of those appointed to determine it, the other being absent; that notwithstanding. the piaiaiifF ran Lis horse over the ground and the *35stake holder delivered him the note «pon which this action wa>* Nought 5 upon the whole of which statement he said it appeared the note was without consideration and that it was delivered to the plaintiff without the defendant’s content and so no contracc of his, and that in point of law the defendant might be permitted to give this matter in evidence to the jury, who enquire of the damage".upon a judgment by default, not for the purpose of overturning the action, but of mitigating and lessening the damages the jury have this entirely in their power and ought to bear every bind of evidence that may tend in justice to cause a diminution of the damages — and he moved to be at. liberty to give these matters in evidence.

Per curiam,

Haywood,. Judge only in court.

-Can you shew, any authority to justify the admission of-such testimony after, a judgment hv delimit?

T,a\¡lor~ — \ can and will produce it; the subject'of a consideration being necessary or not is treated of very copiously in f Fonb. 333 ; all the authorities are there collected and a conclusion drawn from them, that a consideration is necessary, and that without one s.u action, cannot be supported ;• the defendan" may give in evidence that the consideration iu illegal, Ball. N. P. 278; and though there be a judgment by default the note muss’ be produced.and proved on executing the writ-of inquiry, Bull. N. P. 278; and ic cannot be proved, to be a valid note unless it Lave a good.consideration upon a judgoicnt.by default; the plain-tiifi cannot recover any greater damages than he cats prove to die jury sworn ts assess them, 2 Burr. 907, 908. This was so ¡aid down by Lord Mansfield in an action upon, a policy of insurance where the declaration tvas for a total loss, and the evidence proved a partial one only, where the question was, whether the plaintiff having declared for a total loss could recover less, or as for a partial one ; and I cannot peí ceive any difference in reason between a default on a promisory. note, and one upon an action an a policy of insurance.

Per ourietrr. —-The declaration states a note signed bv the- defendant for such a sum on such-a dav, and the default admit» it j in the case of the policy the darnagc-c.-are totally uncertain till the jury have assessed them ; in the case of the note the damages to the amount specified in the note are certain, but capable to be increased by taking the interest into consideration if the jury think proper to allow it, or to be lessened by the proof of payments ; but the principal objection which lies 'gainst the testimony offered.is this, when a default takes place and an enqui-ry is to be executed as to the damages, every thing material to the support of the sc.doa.ic. admitted by the defendant: 'I he e-mnf’iin of damages is the only thing in question, and the plain-íhf comes p -spared as to that point -only ; be has no notice that of these Lets, are to .he proven,'which shew that the uoteL *36not a good one in law, as that it was without consideration, or upon atvan illegal one, and therefore he must necessarily be tafeen by surprize, were such evidence suffered to be introduced ; if the defendant meant to avail himself of such testimony he should have pleaded the general issue or some other plea which would have given notice to the adverse party that these facts were in- ■ tended to be proved on the trial. 1 Str. 612. East India Company vs. Glover.

The evidence was rejected and the jury assessed damages to the amount of the note and the plaintiff had judgment.

Mr. Taylor immediately moved the court ior a new trial, but the court refused, to make a rule, to shew cause why there should not be a new trial unless he could shew a probability that.the decision was wrong — Rules are not to be granted unless the court be first satisfied that justice probably, requires them..