delivered the opinion of the Court.
John Maguire sued James Conran in the Court of Common Pleas, and judgment being there given against him, he now prosecutes his writ of error to reverse that judgment.
. The suit was brought on a note made payable to the order of Robert N. Moore, for value received, without defalcation or discount, and the note was assigned to Maguire by the payee.
The maker of the note pleaded that the note in the petition mentioned was made and given by the defendant to the said Moore, for the sole consideration that the said Moore, at, &c., did sell and assign to the defendant a certain license and right to quarry rock in and upon certain land, &c., which belonged to the estate of the late John Mullanphy; and the said Moore then and 'there affirmed that he had a good and sufficient license to quarry stone in and upon said- land, and a good *109right to assign and sell suoh license, so as to authorize the said defendant to quarry-stone there; and the defendant then averred, that at the time said Moore had no sufficient license, &c., as aforesaid.
The plaintiff demurred to the plea, and judgment in the demurrer being for the defendant, the question is, Did the Court of Common Pleas commit error in'sustaining the demurrer?
The note is not negotiable under our statute.— See the act concerning bonds and notes, sec. 6, p. 105, of the Digest of 1835.
Therefore, the nature of the defence not being changed by the assignment of Moore to Maguire, the demurrer was properly overruled.— See third section of the same act above-cited; see, also, 7 Mo. Rep., 402, Maupin and Jamison vs. Smith.
The judgment of the Court of Common Pleas will, then, he affirmed.