Suit upon notes, by the administrator of Duff, the payee, against Blackburn and Miller, the makers.

The defendant, Blackburn, answered, as a defense to the action, “that the two notes sued on were executed, on his *345part, to secure the rent due from him to said Duff's estate, for the use of a saw-mill belonging to said estate from the 1st day of March, 1856, to the 10th day of September, 1856; that he was entitled to the use of said mill for the term aforesaid by virtue of a lease or agreement made between Samuel Jamison, the former administrator of said Duff's estate, and the said Blackburn and Miller, and that said notes were executed at the time of making said lease between the parties thereto, as the consideration, on the part of said defendants, for the use of said mill, and that said mill was propelled by water drawn from Eel river.” He further alleges that one Charles Stowman asserts that Duff had no right to draw water for the mill from said river, and has commenced a suit to test the question, &c., which suit is still pending and undetermined, &c.

A demurrer to this answer was sustained. Judgment for the plaintiff.

The paragraph constituted no bar to the action. The matter of it might, perhaps, have been used by way of affidavit on which to move the Court’ for a stay of proceedings in this, till the decision of the other suit.

Per Curiam. — The judgment is affirmed, with 10 per cent.’damages and costs.