delivered the opinion of the Court:
This was an action of debt, on a sealed note for one thousand dollars, which is made payable to order. By the declaration it appears that the plaintiff became the assignee of the note before it became due. To the declaration, which is in the usual form, the defendant pleaded a special plea that the note in question was obtained by fraud and circumvention, and alleged that the goods for which it was given were less in quantity and deficient in quality, from what they were represented by one Wilkin, the payee of the note. To this plea there was a general demurrer and joinder. The Court overruled the demurrer, adjudging the plea sufficient; the plaintiff took issue on" the plea; a trial was had, and a general verdict for the defendant, and judgment in his favor for costs.
To reverse this jfidgment, the plaintiff prosecutes this writ of error. It will be apparent that the plea would have been no bar to the action on the note in the hands of an innocent endorsee or assignee, as has been repeatedly adjudged; nor has the 6th section(1) of the act of the General Assembly of this State, given the right to interpose such a defence where there is a mere deficiency in the quality or quantity of the article sold, as between the maker and the assignee. It declares that, (“ if any fraud or circumvention be used in obtaining the making or executing any instrument,”) the note shall be void not only between the maker and payee, but also in the hands of every subsequent holder.
I The present case does not come within this provision; the fraud, as attempted to be charged, consists in the contract itself, and not in the obtaining the making of the note. ( If a person represent a note to contain a particular sum, when, in truth, the amount is much greater, here would be a case contemplated by the statute ; the note would be void not only between the maker and the payee, but also in the hands of every subsequent holder. That, however, is not the case here, for the plea admits a consideration, but denies a consideration to the extent of the face of the note, because of a deficiency in the quantity and quality of the articles sold, which it alleges were represented to be of full value. It will not be denied that the plaintiff was entitled to recover the value of the goods, even if he had stood in the place of the original payee, but being an innocent holder before the note became due, it is most clear that the matters of the plea would be no legal defence to the action. The issue, then, was a wholly immaterial one, and the verdict, on that ground, ought to be set aside. The Circuit Court ought to have sustained the demurrer; but it will be seen from the pleadings in the cause, when the demurrer to the plea was overruled, the plaintiff replied, and took issue on the plea. The question on the demurrer might probably not now be regularly before the Court for its decision, yet as the issue tried was one wholly immaterial to the question before the Circuit Court, this Court is bound to reverse the judgment, and to render a judgment for the plaintiff, notwithstanding the verdict of the Court below. (The rule is, that when the matter, be it never so well pleaded, could signify nothing, judgment may, in such cases, be given as by confession.(2)
The clerk of this Court will assess the damages on the note, which is the interest, and render a judgment for the debt and damages so computed, with the costs of this Court, and the Circuit Court of Adams county.
Judgment reversed, and final judgment rendered.
Note. After the decision of the Court overruling the demurrer, if the defendant rejoins to the replication, and issue is taken thereon, it is a complete waiver of the demurrer. Beers v. Philips, Breese 19.
A plea of the general issue, the demurrer being undisposed of, is a waiver of the demurrer. Cobb v. Ingalls, Breese 180.
After issue taken on the facts contained in the declaration, it is sufficient for the plaintiff, by proof, to sustain the material averments contained therein. Ante 52. By pleading to the declaration, the defendant waives his demurrer. Buckmaster v. Grundy, decided Dec. term, 1836, Post.
It is not the duty of the Circuit Court, of its own motion, to set aside an immaterial issue. _ A motion to set aside such issue must be made in the court where the verdict is rendered. Burlingame et al. v. Turner, decided Dec. term, 1839, Post.
R. L. 484 ; Gale’s Stat. 527.
2 Ld. Raym. 924; 1 Stra. 394; 2 Doug. 749; authorities cited in 2 Petersdorff’s Abridg.