By the Court
Mason, Ch. J.The note on which this suit was brought was given by William Long to Gabriel Long and afterwards came by two endorsements into the possession of Walling. The first of these endorsements was made before the note became due — the other afterwards. The body of the note contained the words “witness my hand and seal,” but no seal or scrawl was affixed to the name of William Long. The suit was brought in the name of Gabriel Long for the use of Walling.
The Bill of exceptions states among other things that on the trial of the cause the deft, below offered to prove that the note was given without consideration, which was objected to, and the objection sustained by the Court. This appears to be substantially the same error for which the judgment in the ease of Temple vs. Hays & Hendershot was reversed at the last term of this Court, and we see nothing to create a distinction between the two cases. It *38is objected that in this case the defendant below neither pleaded nor gave notice of a want of consideration; but was that necessary? In assumpsit want of consideration may be given in evidence under the general issue 1 Ch. Pl. 511, and it seems that nearly the same matters may be given under the plea of nil debet in an action of debt. 1 Ch. 517 note (p). We are inclined to think that no notice or plea of want of consideration was necessary to enable the defendant to give evidence of that fact in his deience.
But it is contended for the defendant in error that the instrument declared on was a specialty to which want of consideration would be no defence. It has sometimes been decided that the existence of the seal or scrawl was not sufficient to constitute a specialty unless the same were referred to in the body of the instrument; but we are not aware that the allusion to the seal in the instrument as in this case is of itself sufficient to constitute a specialty in the absence of both the scrawl and the seal. We think that such would certainly not be the case.
We will merely observe in conclusion that in one respect this is a stronger case for the plaintiff in error than that of Temple vs. Hays & Hendershot above quoted. There the instrument declared on was negotiable. Had the holder of the note in that case availed himself of his right of suing in his own name, fraud or want of consideration in the origin of the note would have been no defence. But in the present instance the note was not negotiable, but is to be governed by the rules applicable to ordinary choses in action. In all such cases want of consideration between the original parties is a good defence to a suit brought for the use of the assignee, ( Chitty on Bills 9.) The judgment below is therefore set aside and a new trial granted.