The objection to the declaration is not well taken, even if we can carry the demurrer back over a good, issuable plea, which, it must be admitted, the general issue is.
The averment of non-payment applied to the special count as well as the common counts, and left the special count good, after the common counts were dismissed. The clerical omission of the word not .is cured by the statute of jeofails, and even if it were not, where the sense is so obvious from the words used, we should not hesitate to hold the declaration good.
The substance of the defense relied upon is, that the note was given in part consideration of two thousand dollars, the purchase money of various tracts of land, which the payee of the note sold to the maker, and represented that they had upon them' twenty-four hundred cords of wood, whereas they had upon them but sixteen hundred cords, which the vendor well knew; and that the maker of the note purchased on the faith of those representations, supposing that there was the full twenty-four hundred cords of wood on the land, and that the plaintiffs, when they took the note, well knew all these facts, and conclude in bar of the whole action.
Now the manifest and insurmountable objection to these pleas is, that they do not show that the eight hundred cords of wood which wore wanting, according to the representations, were worth the amount of the note sued on, and unless they were, they could not entirely defeat the plaintiffs’ action, which each of these pleas purports to do. It is not even averred that the wood was of any value whatever, so that the pleas were insufficient to defeat any part of the cause of action, much less the whole.
The demurrer was properly sustained, and the judgment must be affirmed.