By the Court,

The issue joined in this case were immaterial. The promise by McCutchen to receieve a part of the debt for the whole if paid on or before a certain day, was without consideration, and therefore nudum pactum. But if he actually received a portion of the debt, in full satisfaction for the whole, he would be thereby bound. The material fact therefore presented as a defence by the second and third pleas, was the receipt of a part of the money in full satisfaction of the whole, and if so received, whether it was paid before or after the time previously agreed upon was immateri*156al. The issue joined on the question of time therefore determined nothing by which the court could render judgment, any more than though there had been no verdict at all.

It is contended that this defect cannot be reached in this manner, but that the parties would be bound by the verdict as a penally for having gone to trial on an immaterial issue. Such a proposition is opposed to both reason and authority. The whole object of a jury trial, is to determine some fact which shall be decisive of the merits of the matter in controversy.

To render a judgment of an immaterial fact would be as absurd as to make it dependant upon the direction of the wind at the time. The authorities cited by the counsel for the plaintiff in error, in his argument in reply show that these views have been entertained and become the settled law of the courts.

Judgment reversed.