M'Clelland v. Quarles, Assignee, in Error

M’Clelland v. Quarles, Assignee, in Error. QUARLES sued McClelland before a justice of the peace on a note payable to Saunders, without any assignment of the note by the payee. The defendant pleaded, — 1. That he resided in W. township, and not in the township in which the suit was commenced, &c,, and that there were justices resident in W. township; 2. That the payee, in consideration that the defendant would pay him a certain sum, agreed to forbear to sue for a certain time, &c.; 3. That another suit was pending on the note, &c. Judgment by the justice for the plaintiff. Appeal to the Circuit Court. The pleas, on the plaintiff’s motion, were rejected. The defendant then offered to prove under the general issue, (the benefit of that plea being given to him by the statute, though it was not filed,) the payee’s agreement to forbear, &c. as stated in the rejected plea, and also payment of the consideration to forbear, &c. This evidence was rejected. Judgment, on the appeal, for the plaintiff. Objections made to the pleas, — viz. To the first, Because it did not aver that there was a justice in W. township not related to either of the parties: To the second, Because it did not aver payment of the consideration for forbearance: To the third, Because it did not aver that the suit pending was between the same parties. Held, that the objections to the pleas would have been good, had they been made before the justice; but not having been there made, the objections were waived. Held, also, that the evidence' of the agreement to forbear, &c. should have been admitted. Held, also, that the want of the payee’s assignment of the note was a fatal objection to the suit. J. B. Ray, for the plaintiff. C. Fletcher, for the defendant, [MAJORITY] The judgment was reversed with costs.