delivered the opinion of the Court:

The error assigned upon this record is, in overruling the demurrer to the fifth plea.

The facts disclosed by the plea show, that by an artifice of the payee of the note, the defendant was induced to execute it as one payable absolutely, under the belief that it Avas another one of a different character—one payable only on a contingency.

This makes a case, not merely of fraud in relation to the contract or consideration of the note, but of fraud and circumvention in obtaining the making or executing of the note, Avhich, under the eleventh section of the act relative to negotiable instruments, is pleadable inTbar to any action brought on the note by any assignee of it.

We think it clearly a case contemplated by the statute. Woods v. Hynes 1 Scam. 103; Mulford v. Shepard, Id. 583; Latham v. Smith 45 Ill. 25.

It can not be said as a matter of law, that the plea shows such negligence on the part of the payee as avoids the defense. It would be a question of fact, for the jury to pass upon and determine, whether the payee was guilty of such negligence in executing the note, and allowing it to go into circulation, as should preclude him from setting up the defense.

Perceiving no error in overruling the demurrer, the judgment is affirmed.

Judgment affirmed.