delivered the opinion of the Court.

IN the year 1819, several executions issued from the office of the Montgomery circuit court, against William B. Sears, a non-resident, and who, at the time, was dead. The sheriff levied upon and sold a tract of land in Montgomery, as the estate of Sears, and Triplett became the purchaser. Shortly afterwards, Triplett sold to Young 'an interest in this tract of land, and conferred upon him an authority to prosecute suits for its recovery, and to sell at his discretion, except that Triplet was to be subject to no, responsibility touching the title; and in payment for the interest so purchased by Young, he gave three notes for fifty dollars each. These Triplett assigned to Davis. Young commenced an ejectment against some of the tenants on the land; but it was proved in that suit, thf\t Soars had been dead long before the emanation of the execution. He, therefore, refused to pay Davis. The latter warranted; Young succeeded, and Davis appealed.

On the trial of the appeal, Young filed a ymttan plea impeaching the consideration; and in addition to the facts mentioned, offered proof conducing to show that Triplett had bepn apprised of the deáth of Sears, and concealed i<¡ from him.

The deposition taken in Ute ejectment vyas offered -inc* reac* *D evidence in this case, to prove the death of Sears, the appellant objecting to it, because it was, he supposed, irrelevant. The appellant also objected to ^le °ra* tesl‘mony touching the death of Sears, and the. knowledge of it by his assignor, arid the failure to coiry municate it to Young, as irrelevant and incompetent,

The appellant,then moved, the court to instruct the jury, that taking all the proof of the appellee as true, it dqes not support the plea of no,consideration; which was refused.

And on the motion of the appellee, the court, as is inferred, instructed the jury, <k that if Young was un-apprised of the death of Sears, at the time.ofhis purchase, and Triplett knew it, and that at the time of the contract Triplett had full knowledge of that fact, Y.oung was absolved from the'responsibility of a risking or chancing bargainand that, if Sears was dead at the time of the sheriff’s s§le, Triplett derived no title by gaid purchase,” ' t

It is not certain, from the record, that the court gave these instructions; but it is most probable.

, Tf Sears was dead at the time the execution issued, the sale by the sheriff was certainly void, and conferred no title on the purchaser; and if the purchaser, being fully apprised of so fatal an objection to his claim, shall make a contract for its sale, to one ignorant, and known by him to he ignorant of the defect, without communicating the fact, and that sale too of the chancing kind, we would, prima facie, say the Contract could not be enforced.

How far the deposition which it is contended was improperly admitted, m.ay be competent, we have not ex-Omined. The only question made or decided, was as to its relevancy; and certainly it tonded to establish an important fact, the death of Sears, before the issue'of the process.

But ihe incompetency of all the other testimony is made a matter of exception, because of a variance from the tenor of the plea. The law requires no pleading in writing, upon the trial of an appeal. Here, there was no declaration. A written plea could neither be demanded by the appellant, nor-are the appellees concluded by it. We look, therefore, into the merits of the controversy; and thus considered, it has been seen that the testimony was material.

It follows from what has been said, that the court was Correct in the instructions given and refused; and, likewise, in overruling the motion for a new trial..

Judgment affirmed with cos,ts,

a motion was made far a re-consideration, and the grounds shown in the following

PETITION FOR A REHEARING, BY

The counsel for the plaintiff in error solicits the court to re-consider the three cases decided. The counsel, who alone is interested on the part of (he plaintiff, being the assignor of (be notei would not request a reconsideration, were he not confident that the law as well as the justice of the case, is with him, The warrants were prosecuted on three several notes, under the hand and seal of Young, for fifty dollars each, According to the well settled principles of law, the consideration of these notes cannot be impeached or gone into, . unless it be by plea verified on oath. See Digest, 265. Previous to the act of assembly approved on the 18th of December 1801, inactions founded on a.ny specialty or note in writing, at law, the consideration could not be impeached or gone into, except ip such cases a.s provided by special statute. The act referred to only permits these notes to be impeached by special plea. See Digest, 257. On the appeal to the circuit court, the ^ase is to be tried as though originally instituted there. See Digest, 702, The legislature has also prescribed that there shall he no. particular formality required in pleading; but the court shall make such orders as they shall deem necessary for a fair and speedy trial on the. merits. See Digest, 705, §8-1 conceive it clear, that the legislature never intended to dispense with (he plea of non est faclum, in cases of fifty dollars and under* and thereby require the production of the subscribing witnesses, in all those cases. Nor can Í; readily admit or believe, that the legislature, at the passage of the act, intended to dispense with the special plea impeaching the consideration of notes for five pounds or upwards, and that the plea should be'verified by oath, in cases appealed from to the circuit court, If the court should believe thattbe appellee could impeach the consideration of a note over £5, under the solemn and deliberate act and deed of the party, without oath, it will, overturn what is supposed to be the well settled principles of law in these cases. In cases under five pounds,, the justice of the peace has equitable as well as common law jurisdiction, and the right of trial by jury is. pot secured; but m all cu.ses.fqr twenty dollar? ^nd ugj *63Wards, the right of trial by jury is secured by the constitution of the United States; and it is contended by the counsel for the plaintiff in error, that the notes carry on their face evidence of sufficient consideration, and that they can only be impeached by appropriate plea, verified by oath, agreeably to the act of assembly in such cases made and provided; and when such plea is jdeaded, it must be pleaded truly, and the evidence confined to the issue joined. The plea pleaded was, that the note was not given fot any consideration, good or valuable, but was voluntary. The evidence offered, was not calculated to demonstrate the points in issue. T,he Court below should have sustained the motion to reject the evidence. The defendant was concluded by the plea, from the introduction of any evidence, except such as conduced to prove the points in issue. Independent of the plea, he could not enquire into the consideration of the notes. The act of assembly increasing the jurisdiction of justices of the peace and regulating appeals in the circuit court, does not repeal the act requiring notes to be impeached by plea and upon oath. The court is respectfully solicited to grant a rehearing.

But the court, after consideration, overruled the motion, and adhered to the opinion delivered.