
    Joseph P. Kennedy against Pickering, Administrator of Jackson.
    
      December, 1823.
    1, Informal plea of plea, country!"fnd no replication, there
    2, Plaintiff diesdies pending action: ¡hew'reíivaí'.
    3, Defendant, by Jj^viMraires* prior discontinnance by operation of !atv.
   JUDGE Lipscomb

delivered the opinion of the Court.

The Record shews a declaration in assumpsit, after which is the following entry: “ Plea, payment,” signed “R. H. Gil-mer,” and a verdict and judgment for the plaintiff.

This Court has always evinced a disposition', after a ver-diet, to overlook defects of form in previous proceedings, We have decided that a verdict embracing the merits, though on a defective or informal issue, should be sustained; and that after verdict it is to be inferred that all formal defects in the pleadings had heen waived, Applying this rale to 'the present case, we consider that a formal plea of payment was intended from the entry on the Record, and this being a special allegation of new matter concludes with a verification, and there could be no issue without a replica-^on plaintiff. No replication appears, and the de-pen(jant>s pieas remained uncontradicted, when the de~ Pendant’s cause was put to the Jury; and consequently there was no issue on which a verdict could be founded. It is true, if this plea of payment had informally concluded to the country, and issue had been joined and a verdict rendered, it would have been sustained : for the defendant would not have been permitted to take advantage of bis own-mispleading ; and it would have been at the plaintiff’s election to demur, or join, in the informal issue tendered j but in this case it was the plaintiff’s own fault that the cause was put to the Jury without an issue. To presume that there was a replication would be to infer more from the verdict than the majority of the Court feel authorized to do.

On the second assignment — that there were no parties when the judgment was rendered. The Record shews that James Jackson, the original plaintiff, died pending the action, and does not shew that Sarah Pickering was ever made a parly as his representative. We all agree that no judgment could be rendered until the proper parties had appeared.

As to the last assignment — that the cause was discontinued.

The Record shews no proceedings or continuance for se • veral years after the commencement of the suit, until May term, 1821, when there was a continuance on the affidavit of the defendant. This, we conceive, was a waiver of the former discontinuance by operation of law. On the first’ and second assignments of Error, the judgment must be reversed and the cause remanded. 
      
      
        Ripley vs. Coolidge, ante, p. 11. Malone vs. Donnelly, ante, p. 12.
     