delivered the opinion of the court. The defendants, sued on their promissory note payable to R. Prudhomme or bearer, pleaded it had been given for a consideration which had failed, viz. in payment of the price of a mulatto, who was addicted to redhibitory vices; that, as soon as they discovered this, they gave public notice of their intention not to pay it, &c. They required that the plaintiff should answer on oath, whether he did not know, that defendants had given notice the note would not be paid. The judge having directed that this interrogatory should be answered, the plaintiff did not answer it.

There was a verdict and judgment for the defendants; and the plaintiff appealed.

The testimony fully establishes, that the slave was, long before the sale, in the habit of running away, and soon after it, made his escape.

The plaintiff’s counsel contends, that as the note was transferred to him, in payment of a debt, before its maturity, the defendants cannot avail themselves of the failure of the consideration against them.

The plaintiff having failed to answer the interrogatory, it must be taken for confessed. Civil Code, 316, art. 261. The jury were, therefore, correct in drawing the consequence, that the failure of the consideration destroyed his right; it was their province to determine the fact, that the plaintiff was sufficiently put on his guard, by the notice which his silence admitted.

There is no difference between a want and a failure of consideration. Each may be set up as a defence, not only against the original payee, but also against an endorsee, who look the note with a knowlege of an equitable circumstance entitling the maker to avail himself of the defence. 3 Johns. 124 & 465. 7 id. 26. 8 id. 20. 10 id. 198 & 231. 11 id. 50. 5 Mass. 299. 6 id. 457. Chitty on Bills, 84 a.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.