
    GASTON vs. PARSONS.
    
    1. A return of “ no! fn>r to a writ, does not authorise the inference, that the suit ¡..¡ábandoned by the plaintiff.
    2. A plea in abatement, that a anil was pending for the identical cause of action, at the time of the i.«naneo of the writ, is supported by the i'ic. haiie-:) of the record ; and the replication-to such a plea shou'd ; resent the i: rue of mil ¿id record.
    
    3. A writ, as part of the. record, ir. proper and pertinent evidence to support such a pica, rv an i sue of vrl lid record.
    
    4. A defendant is out it - ' i ■■ yiluK'!'.! ’ ron pros, where no replication i; filed to ■/ :■ ic cbt-L -t.
    5. And a failure, on his.part, to more for judgment of nonpros, does not authorise the rendition of judgment agaiusthim.
    Errtn- to Vf licor: County court.
    Assumpsit on loIc.
    In this case, Cachón was cued by Parsons in the County court of Wilcox tounfy, and pleaded the pendency of another suit for the same cause of action, in abatement. No replication or bane appeared on the record., The judgment entry etc ted: !! this day came came the parties, by their attorneys, and the plaintiff has leave to dismiss his suit in the Cjircn.it court; and the defendant sayeth nothing further ia bar or in preclusion of the plaintiff’s right of action, hut against the.plaintiff leaves himself wholly undefended; it is therefore considered by the court, that the plukiUn recover of the defendant the sum of,” — then proceeding to assess the damages without the intervention of a jury. _ A bill of exceptions disclosed, that when the cause came on for trial, the defendant offered in evidence, a writ issued from the Circuit court, apparently for tire same canse of action, and offered to prove that it had never been dismissed or discontinued: but the court would not permit this evidence to be introduced, and gave judgment in favor of the plaintiff.
    The defendant below prosecuted his writ of error to this court, and assigned for error, that the County court erred—
    1. In rendering judgment against him, without disposing of his plea in abatement.
    2. In not permitting the introduction of the evidence, stated in the bill of exceptions.
    
      Proctor, for plaintiff in error.
   GOLDTHW AITE, J

— The judgment entry, unexplained, would induce the belief, that the defendant in the court below withdrew his plea, and assented to the rendition of a judgment for .the amount of the note; but the bill of exceptions satisfactorily shows, that the-plea in abatement was not withdrawn, or the defence abandoned. The defendant might have insisted on his right to a judgment of non -pros, for want of a replication to his plea. The omission so to do, did not place him in a de fenceless condition, or authorise the court to render any judgment against him; and the County court erred in so doing.

If we were even to presume that the usual replication to a plea of this description was filed, and that an issue of mil fiel record had been presented to the court for its determination, it would not better the condition of the defendant in error. The writ offered in evidence showed the commencement of a suit, apparently for the same cause of action, on the eighth day of May, eighteen hundred and thirty-seven. This was returnable to the Circuit court, to be held on the seventh Monday after the fourth Monday of March, eighteen hundred and thirty-seven; and the presumption is strong, if not conclusive, that the Circuit court was in session when the second writ was issued, on the nineteenth of .May, eighteen hundred and thirty-seven, returnable to the County court, and the foundation of this suit. The first writ was not executed on the defendant, and the return is ‘ not found;’ but this will not authorise us to infer an abandonment of the suit on the part of the plaintiff, even if that could avail him on the issue we have named.

The evidence offered was proper and pertinent to support the plea on an issue of mil tiel record, and ought not to have been rejected, if such was, in point of fact, the state of the record in the court below.

In either aspect of the case, there was error in the action of the County court; and its judgment is reversed, and the cause is remanded.  