Opinion of the Court by

This was an action of assumpsit, brought by Shelton against Wimer on a promissory note - made by one George W. Call, payable to the order of the defendant, Wimer, and *268endorsed by the defeudant to the plaintiff. The note sued was not a negotiable note within the meaning of our act on that subject. The declaration contained a special count, containing the averments usual in declarations upon negotiable instruments, but containing no averment of the institution of any suit against the maker, or of his insolvency, or of the existence of any fact which under our statute alone renders the assignor liable. The declaration also contained the common counts, for money lent, money had and received, money paid, &c.

*268The defendant pleaded first, non-assumpsit, and secondly, a special plea setting forth a usurious transaction between Call and Shelton, and the execution of the note sued on in pursuance of such corrupt and usurious contract, and that the defendant endorsed the note for the accommodation of Call.

issue was taken on the plea of non-assumpsit, and a demurrer filed to the plea of usury. The court sustained the demurrer, and gave leave to the defendant to. amend his pleadings.

At a subsequent term, the defendant 'withdrew his plea 0f non-assumpsit, and waived his leave to amend his record-1 plea, and the court gave judgment ot nil dicit. Ihe court conceiving it manifest from the instrument of writing on which the action is founded, that the-amount of damages wag flxec[ by sa¡(j instrument, assessed the damages accordingly without summoning a jury. Judgment was then entered up, and from this judgment defendant has appealed to this court.

Admitting that the plea was bad, the demurrer when sus-(-aine(j should have reached back to the first count in the 7 declaration. That count contained no averment of any ^act> which would under our act concerning bonds and notes authorise a shit against the assignor, and was therefore bad. the court, after the withdrawal of the plea of non-as-sumPsR> proceeded to assess the damages, asi hough the first count in the declaration was still valid. That was the only count containing any description of the note, and the only count which could authorise the court to dispense with the *269finding of a jury. The plaintiff obtained a benefit from his demurrer to which he was not entitled, and the judgment must therefore be reversed.

The entry, in my opinion, shows no judgment on the demurrer, and it is, in my opinion, as if no plea had been filed.