#### Beebe vs. Hershy.

The plaintiff does not discontinue his action by taking issue upon a plea of part payment, without taking judgment for the part of the debt unanswered.

'Writ of Error to the Circuit Court of Pulaski County.

The plaintiff instituted an action of debt upon a writing obligatory for $1050. The defendant appeared and pleaded that he had paid $300 parcel of the debt, to which plea there was a general replication and issue. The case was then submitted to the court sitting as a jury: verdict and judgment for the plaintiff; and the defendant sued out a writ of error: and assigned for error that the plaintiff in the circuit court had discontinued his action by replying to the plea of part payment without first taking judgment •for the residue .of the debt.

*429Watkins & Curran, for the plaintiff.

Refer to the brief in the case of Beebe, vs. Sutton, ante. The decision upon the facts in the case of Ellery vs. Hicks et ux., 4 Mod. 246, does not sustain the point, that the verdict cured the discontinuance. Such a principle cannot be good law, because in every case the plaintiff might cure the discontinuance were he permitted to proceed after having discontinued. See Vincent vs. Boston, 2 Ld. Raym. 716, as to this point. The case of Edwards vs. White, 12 Conn Rep. 28, seems opposed to the principle contended for; but in that case the court say “ These (i. e. the English) rules of pleading have not been adopted in Connecticut.” That case is then no authority on this point; as the English rules of pleading have been adopted in this State.

Cummins, contra.

In several cases in England it has been held that where a plea is pleaded, answering only to a part of a declaration or count, and the opposite party demurs thereto or takes issue upon it, the whole action is discontinued; and that in such cases the proper practice is to take judgment, nil dicit, for the whole cause of action without regard to the plea, or at least to take judgment nil dicit for the part of the cause of action not answered by the plea. 1 Ld. Raym. 231, 716, 841. 1 Saund. Rep. 28 n. 3 and authorities there cited. 1 Salk. 79, 80.

This rule has been controverted and the reverse of it laid down; and upon reason and authority it may be safely asserted that it never was the true rule; and whether a party demurs or replies to such plea, it does not operate a discontinuance. Sterling vs. Sherwood, 20 J. R. 206. Bullythrope vs. Turner, Willes> R. 475, 480. Riggs vs. Denniston, 3 John. Cas. 205.

But even if the first proposition was the rule at common law, it is not applicable to our practice, and would not be enforced by our courts, Edwards vs. While, 12 Conn. R. 28. All the authorities agree that, in cases of this kind, the plaintiff may take judgment nil dicit, for the part of the cause of action not answered at any time during the term at which the plea is pleaded, and demurrer is entered or issue taken, and this will prevent a discontinu-*430anee. Market vs. Johnson, 1 Salk 180. Vincent vs. Beston, 1 Ld. Raym. T16. 1 Strange 302.

A trial and verdict on an issue upon such plea cures this discontinuance. Ellery vs. Hicks and Wife, 4 Mod, R. 246.

So that upon no principle can it be urged that there was a dis-' continuance in this case.

Oldham, J.

This was an action of debt brought by Hershy against Beebe. The defendant below filed a plea averring part payment, to which issue was joined, and found for the plaintiff. Beebe has brought the case to this court, and assigns for error that the plaintiff below discontinued his action by replying to his plea of part payment without taking judgment by nil dicit for the part unanswered.

The question thus presented has been settled at the present term in Beebe vs. Sutton. The rule as contended for by the plaintiff in error, is purely technical, and has neither justice nor good sense to support it. It was adopted in England at a time when as much regard was had to form as to substance, but it is inapplicable to proceedings in the courts of this State, where mere technical forms are made to yield to substantial justice. We cannot endorse the position that a defendant can defeat the plaintiff’s action by filing a defective plea. The plaintiff below, by taking issue upon the plea of part payment without taking judgment for the part unanswered did not discontinue his action, and the issue having been found for him, he was entitled to judgment for the amount of his demand. Let the judgment be affirmed.