The errors assigned in this case are, 1. That the court erred in sustaining exceptions to the plea of failure of consideration of the notes sued on. 2. In denying the right of defendant, upon the pleadings, to open and conclude the argument to the jury. And 4. That the verdict is too vague and indefinite to *119support the judgment. The third assignment, for overruling the motion for a new trial, is dependent upon the others, and need not he specially noticed.

In regard to the order of argument, it is sufficient to say that the denial of the right of the holders of the notes to sue upon them, put them upon proof, and that necessity entitled them to the opening and. conclusion of the argument before the jury.

The plea of a failure of consideration, because of the intervention of the war, is warranted neither by the maxims of logic nor the rules of law, and the exception to it was properly sustained by the court.

It is manifest, from the evidence introduced to show that an in strument of writing was executed at the time of the making of the notes, which was to operate as a defeasance in a certain contingency, the jury regarded it not in their finding; because the proof did not sustain the allegation in the answer. It was properly so considered by them, for the proof did not sustain it. Then, the only point really to be determined by them was, whether the holders of the notes were the real owners. If they were, upon the pleadings and the proof, the actual amount, which they were entitled to recover,, was the face of the notes, with the ten per cent, interest, abated by the credits upon the notes, which credits were admitted by. the pleadings of the plaintiffs. This is the obvious import of the verdict of the jury. The finding of the jury is certain to a common intent, and is made certain to a certain intent by. the pleadings in the cause. And after the verdict of twelve men,, -judgment shall not be staid or reversed, for want of form. The judgment is affirmed.

Affirmed.