delivered the opinion of the court: This was an action of debt brought on a writing obligatory, by Fisher, as as-signee of Sylvanus Phillips, against Eason. In his defence, Eason craved oyer, and filed three pleas. First, nil debet; second, denying the assignment of said writing; and third, that actio non on the second day of February, 1830, he executed to Phillips a mortgage or deed of trust on a certain tract of land lying in said county, near the mouth of the river St. Francis, to secure the payment of the Writing in the plaintiff’s declaration mentioned, (together with two other notes, all bearing the same date,) by which said deed of trust or mortgage, he, the said Eason, conveyed to the said Phillips, his heirs or assigns in trust, to secure the payment of the sum above demanded on said writing, with others, a certain tract of land as aforesaid, containing 640 acres: and the said Eason avers that on the 22d day of September, 1830, without any assignment having been made on said deed of trust or mortgage, and before any assignment had been made upon said writing in said plaintiff’s declaration mentioned, he, the said Eason, fully paid to and satisfied him, the said Phillips, all and every sum or sums of money for which the said mortgage or deed of trust was given: and he, the said Phillips, to wit, on the said 22d day of September, 1830, at the county aforesaid, caused the Clerk of the Circuit Court to endorse upon said deed of trust or mortgage, that he, the said Phillips, acknowledged the payment of the money for the said deed of trust or mortgage, and relinquished all his right, title, claim, and interest, of and to the premises mentioned in said deed; which said endorsement, so made upon 'said deed, is under the seal of said court, ana under the hand of Austin Rudmclc, then clerk and ex-officio recorder of said county. Of all which proferí is ’made, concluding with a verification, &c. Afterwards the parties, by their attorneys, appeared. The defendant withdrew the plea of nil'debet, issue was taken upon the second, and a demurrer filed to the third plea. On argument the demurrer was sustained; when leave was given the defendant to interpose the plea of payment, of which, however, he did not avail himself; and neither party requiring a jury, the case was submitted to the court for trial: whereupon, afterwards, the court being sufficiently advised of the premises, found for the plaintiff, and judgment waa entered up accordingly: to reverse which the defendant in the court below prosecutes his writ, and assigns for error, first, that having craved oyer of the writing declared on, the court ought to have awarded it. Second, that the demurrer to the declaration was not disposed of. Third, that there was no joinder to plaintiff’s demurrer. Fourth, that the court erred in sustaining plaintiff’s demurrer. Fifth, no replication to, or disposition made of, defendant’s plea of payment. Sixth, that on the trial there was no evidence of the assignment, nor was the writing declared on produced in court.
As regards the first assignment, on profert made as in this case, the defendant having craved oyer, was entitled to it before he could be required to answer; as he is supposed to be unable to plead ad? vantageously without it. There is no evidence that it was refused, nor is it necessary to enquire; for having afterwards filed his pleas to the action, he thereby waived all his right to oyer. See Gould, 451; 1 Chitty, 372. 2d, The demurrer to which the plaintiff in error refers, does not appear to have been either regularly filed or entitled as of this or any other suit. As presented to us, it could have no bearing upon these parries; and even if correct in form, it was too late. As an issue in fact had been made up, the adverse party was not bound to notice it. 3d, The want of joinder in demurrer is cured by verdict. The defendant, below might have aded the similiter, and he waived it by going to trial. See Chitty, 587, 614, 588; 5th Taunton, 164. 4th, This assignment demands more serious attention; for upon it the defendant below appears to have placed the most reliance; but whether the third plea to which the demurrer was sustained, was intended as a plea of payment or of satisfaction or both, we have been unable to ascertain. It cannot be considered as a plea Paymcn‘5 and it wants the requisites of the other. It sets up a special defence that a collateral security had been given, which was neither of a higher order nor a payment of the debt. It does not, in direct terms, assert that Eason paid the debt in the declaration mentioned, but that he had paid all the money for which the mortgage or deed of trust was given. The plea is doubtful, ambiguous, and uncertain; and no distinct issue being presented, we think the demurrer correctly sustained. Stephens on Pl. 421, 425, 488, 387. The fifth assignment is without foundation, the record contains no plea of payment. After the demurrer to the third plea was sustained, leave was granted the defendant below to interpose the plea of payment, but he did not avail himself of it. Nor is the sixth objection better taken; for the facts having been submitted to the court without the intervention of a jury, we must infer, in the absence of any objection or bill of exceptions to the contrary, that the evidence introduced was sufficient to justify the finding. Gould. 497,498; 1 Chitty, 360; Story, 72; Stephens on Pl. 179.
The judgment of the Circuit Court is therefore affirmed.