ASSUMPSIT upon a.promissory note. Pleas — failure of consideration, varying the statement of facts showing the failure. Issues of fact. Judgment for the plaintiff below.

This case was originally decided in the Court below for the defendant. That decision was reversed in this Qourt its May term, 1848, on the ground that the facts shown in the defence constituted no failure of consideration. See Allen v. Lee, Smith’s R. 12 (1). On the return of the cause to the Circuit Court, the defendant there asked leave to file two additional pleas. Leave was refused. The reason why it was deemed necessary to file those additional pleas, is not placed upon the record; nor is that of the Circuit Court for refusing leave to file them. We are simply informed that leave was asked and refused, and the ground for asking and refusing not appearing of record, we must presume the decision below right.

This is the only fact distinguishing the case at present from what it was when formerly before the Court.

The judgment below is affirmed with' 5 per cent, damages and costs.