delivered the opinion of the court.

The only question in this case arises upon the demurrer to the declaration. The action is upon four promissory notes of the defendants, and the declaration contains the usual averments according to. the established precedents in such cases, but does not- aver that the notes were stamped as required by the act of Congress, either at their date or-at any subsequent time. The demurrer is general, that the declaration does not set forth facts sufficient in law. to constitute a good cause of action; but the omission of an averment, in the particular mentioned, constitutes the special ground of objection presented in the brief of counsel.

To the objection there are several answers. In the first place, the act of Congress which requires promissory notes and-other instruments to be stamped, only- declares that they “shall be deemed invalid-and of no effect” whefi the stamp is omitted .“ with intent to evade the provisions” -of the act — that is, with intent to defraud the government of the stamp duty. It is a fraudulent and not an'■ accidental ' omission at which the penalty of the statute is levied. Such *423 fraudulent omission, if available at all to the maker of the note, can only be set up by special plea or urged on the trial. It cannot be taken advantage of on demurrer.

In the second place, if a stamp were -essential to the validity of paper of this kind, the averment in the declaration that the defendants had made aud delivered to the plaintiff their promissory notes, would imply that the instruments were at the time in the form aud condition required bylaw. It has been held that in a declaration upon a contract, some memorandum of which, under the statute of frauds, must be in writing, a compliance with the requisition of the statute is implied in the averment that the contract was made, and that such compliance need not be specifically stated, although it must be proved if denied by the defendant. So in this case the existence of a stamp upon the notes, as in the case stated, the existence of a writing, is a matter-of evidence and not of pleading. *

In the third place, the filing of a plea to the merits after the demurrer was overruled, operated as a waiver of the demurrer. The pleading was. thus abandoned, and ceased theuceforth to be a part of the re.cord. †

The defence is without merit, and the writ of error appears to ús to have been prosecuted merely for delay. The judgment will therefore be

Affirmed with ten per cent, damages.