— This was an action by Thomas O. Sicks as the holder, against Isaac T. Davis as the maker, and *77John J. Carriger and Henry C. Brush as endorsers, of a promissory note governed by the law merchant. Issue, trial, finding and judgment for the plaintiff.

Other parties were made defendants, and other proceedings were had, not necessary to be noticed in this opinion.

The only question in the case is presented by the ruling below in overruling a motion, by Carriger, in arrest of judgment. The complaint stated all the facts necessary to make Carriger liable as the endorser of the note. Dayis pleaded payment of the note, and the cause was tried without any reply to the answer of payment.

It has been held, however, in numerous instances in this court, that, going to trial without a replication, was a waiver of the replication, and that, upon the trial, the matter of the answer would be deemed controverted, as upon a denial.

The motion of Carriger in arrest did not reach any question arising upon a counter-claim filed by Davis against him, or, if it did, it was too broad, and covered the case of Sicks against him, and, being an entirety, was properly overruled.

The judgment below is affirmed, with costs. .