Suit upon a note. Answer, setting up particular facts tending to show a failure of consideration. Reply, avoiding some of those facts by new matter, and denying the existence of others.

The Court gave the opening and close upon the trial to the plaintiff. This was right. The new matter in avoidance of the answer gave the plaintiff the affirmative.

The Court refused two instructions. • The refusal might be sustained in this Court on the grounds given in Fitzgerald v. Jerolaman, at this term (1). But the Court gave a correct instruction in place of those refused.

The record does not purport to contain all the evidence.

The judgment is affirmed, with 1 per cent, damages and costs.