delivered the opinion of the Court.

There is nothing in the affidavit of the defendant, which controverts the fact, that he transferred the note, given to him by the plaintiff, by delivery : but the ground of the application, as I understand it, is, that having transferred the note without indorsement, he was not liable, and had no interest, nor had he expressly authorized the bringing of the action. We are not informed, whether the action failed on account of matter which existed before, or after,the defendant parted with the note; and 1 take it for granted, that if it failed by reason of matter which arose subsequently, so important a fact would not have been overlooked in the statement of the case.* Taken in this view, it is clearly within the principle of the case of Bennet v. M’Fall, referred to by the presiding Judge.

Motion refused.