Suit upon a note. Answer, 1. That the consideration of the note was illegal, being intoxicating liquors; 2 and 3. Other defenses.
The plaintiff demurred to the first paragraph of the answer. The demurrer was argued, and thereupon the defendant withdrew the second and third paragraphs of the answer. The Court sustained the demurrer to the first, and rendered final judgment for the plaintiff for the amount of the note. The defendant excepted.
He now assigns for error the sustaining of the demurrer, *245and the rendering of judgment without giving the defendant an opportunity to answer over.
J. R. Coffroth and J. Brackenridge, for the appellant. J. L. Ketcham, and I. Coffin, for the appellee.The demurrer was rightly sustained. The first paragraph of the answer was framed to bring the case within the liquor law of 1855; but that law being unconstitutional and void, the sale of the liquor, for aught that appears, was legal, and the consideration of the note, consequently, valid.
As to the second ground of error, it does not appear that the defendant asked for leave to answer further, and the fact that he withdrew two paragraphs of his answer undemurred to, shows that he rested his defense upon the very question which was decided upon the demurrer to the first paragraph. The demurrer did not go to matter of form, but of_substance. This case does not fall within § 382, 2 R. S. p. 123. When a demurrer is overruled, the judgment is that the party demurring plead over. Here the demurrer was sustained, and the demurring party had no occasion to plead over.
Per Curiam,. — The judgment is affirmed, with 10 per cent, damages and costs.