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OCTOBER TERM, 1862.

REPORTS OF CASES

DETERMINED IN

THE SUPREME COURT,

OCTOBER TERM, 1862.

SMITH v. OWENS.

"NOTE GIVEN FOR DEBT, EFFECT OF.—A note given in consideration of an ante

cedent indebtedness does not per se discharge the debt. In the absence of an agreement to the contrary, the only effect is to suspend the remedy until the ma

turity of the note. AGREEMENT OF COMPOSITION MUST BE SPECIALLY PLEADED.-Where, to an action

upon a promissory note, an agreement of composition between the debtor and his creditors, including the plaintiff, is relied upon as a defense, such agreement must be specially pleaded, and cannot be considered under a plea of accord and satis

faction by the giving of new notes. * SPECIAL DEFENSE-OMISSION TO PLEAD, NOT CURED BY EVIDENCE.—Where a de

fense is required to be pleaded specially, the omission to plead it is not cured by the introduction of evidence in support of it on the trial without objection on the

part of the plaintiff. COMPOSITION BY CREDITORS-NOTE VOID FOR FRAUD.-If the creditors of a failing

debtor agree between themselves, with the assent of the debtor, to a compo ition of their respective debts, and to receive in lieu thereof securities of a certain character, and one of the creditors subsequently obtains from the debtor new notes of a character more favorable to the creditor than those provided for in the composition agreement, such new notes are void for fraud, not only as to the other creditors, but as to the assenting debtor.

! See Welch v. Allington, 23 Cal. 322; Griffith v. Grogan, 12 Cal. 317; Higgins v. Wortell, 18 Cal. 333; Alchell v. Hockett, 25 Cal. 542.

? Cited as authority in McComb v. Reed, 28 Cal. 284; McKenzie v. Dickenson, April T. 1868, (not reported.)

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