If the nominal plaintiff was prosecuting this suit for his own benefit, it is manifest he could not recover. If for no other reason, because the defendant has been compelled to pay a sum greater than the amount of the note sued upon, to relieve the slaves from the lien which it was his duty to discharge. Is the case altered, because the suit is brought for the use of Adams?
It seems, that at the time of the sale, the slaves were in the possession of Adams, who had a mortgage upon them, and that he delivered them up to Huntington, on receiving defendant’s note. If the defendant was privy to, and assented to this arrangement, he would thereby have precluded himself from setting up this defence to the note. If he was not, he would not be bound by the act of Huntington, and in delivering the negroes to him, Adams must be understood as contracting with, and relying on him, and in that aspect, he would have no greater, or other rights, than Huntington himself.
Which of these two aspects of the case was true, in point of fact, it waS the province of the jury to determine. The *231first charge moved for, was warranted by the proof set out in the record, and should have been given. If the plaintiff desired a charge, founded upon the consent of defendant, to the delivery of the slaves upon the receipt of the note, and the evidence as is now insisted, warranted such an assumption, it should have been moved for. In refusing the charge which 'was asked, and which the proof warranted, the court assumed the decision of the facts of the case, and refused it, according to the argument made in this court, because the defendant was privy, and assented to the delivery of the slaves, by Adams to’ Huntington, on condition of receiving the note. As already observed, if this Avere the fact, it would preclude the defendant from making this defence, but whether such was the fact or not, it Avas for the jury to determine, and not the court.
It has been also urged, that if the court decided wrong, the defendant is not injured, because it appears that Adams has a mortgage upon the slaves. Whether that is so or not, is a matter which cannot be tried in this action. Conceding it to be so, and that he has the right to coerce from the defendant, a sum equal to, or greater than the amount of the note, this right of action against him, cannot extinguish the defence he has the right to make to this note.
■ As to the pleadings, it is sufficient to say, that the defence was admissible under the plea of failure of consideration, which may be pleaded to a specialty, and which being pleaded informally, by consent, must be considered as having all the requisites of a special plea.
Let the judgment be reversed and the cause remanded.