delivered the opinion of the court.

P. O. Thweatt and Greenfield Quarles, partners under the firm name of Thweatt & Quarles, filed their bill against J. W. Hughes, alleging that they were the assignees for value of two notes executed by him to his wife, which were protected by a mortgage on real estate, and praying for a foreclosure of the mortgage by sale of the land. The defendant, by formal plea, averred that the notes were totally without consideration, having been by him executed to his wife at a time when he owed her nothing. This plea, having been set down for argument by the complainant, upon its sufficiency in law, was adjudged insufficient b}’ the court.

We see no legal objection to the plea. It was proper and even technical in form, and certainly good in substance, under Code 1871, § 2228, which entitles the maker of promissory notes to plead against assignees “ all want of lawful consideration, failure of consideration, payments,” &c., &c., “ in the same manner as though the suit had been brought by the obligee or payee.” It is suggested by counsel that the action of the court was based upon the idea that the plea showed that the notes and mortgage had been executed by the husband to his wife in fraud of his creditors, and that therefore he could not resist payment of them in the hands of bona fide purchasers. This is not true. There is no suggestion of any sort in the plea, except that the notes were wholly without consideration, and therefore void, and, having been set down as insufficient in law, it must be judged by its language, and not by inferences or arguments. If the fact suggested by counsel is true, the complainant should have replied to the plea; or, if he desired to show that there was a consideration *378for the notes, he should have taken issue on it. Code 1871, § 1023.

There is no merit in the suggestion that this appeal cannot be prosecuted by Hughes because the record shows that he had been adjudged a bankrupt. The assignee in bankruptcy having been made a party declined or failed to plead, and must therefore be regarded as having declined to assert any claim on behalf of creditors.

Reversed and remanded, with leave to reply to the plea.