
    Osborn K. Field and Sarah Field, his wife, vs. Joseph A. Hawley.
    It is not error to submit an action of assumpsit, to which the plea of non-assumpsit is filed, to the jury without the addition of a similiter; the rule is different where the plea does not refer the trial to the country, but leaves that to be done by the replication.
    Where the defendant confesses the plaintiff’s demurrer to his plea, it is a sufficient disposition of the demurrer.
    In error from the circuit court of Adams county ; Hon. Stan-hope Posey, judge.
    Joseph A. Hawley, sued Osborn K. Field and Sarah Field his wife, upon their joint note for $276, payable Feb. 25, 1845, and due Jan. 1, 1846. The defendants plead non-assumpsit and a special plea. The plaintiff did not reply tp the former, but demurred specially to the latter; the demurrer was confessed at the cost of the defendant, and the cause submitted.to the jury on the plea of non-assumpsit.
    After verdict for plaintiff, the defendants sued out this writ of error.
    
      Hewett, for plaintiffs in error,
    Argued, 1. That there was no issue. 2. That the demurrer was undisposed of legally.
    
      Thomas Reed, for defendant in error,
    On first point cited Smith v. Warren, 2 How. 895; Harmon v. James, 7 S. & M. 111.
    On the second, he argued that a confession of its defects disposed of the demurrer.
   Mr. Justice Clayton

delivered the opinion of the court.

This is an action of assumpsit, to which the plea of non-assumpsit was filed, which was submitted to the jury without the addition of a similiter. This is now assigned for error.

In Smith v. Warren, 2 How. 895, it was decided that such a defect was cured by the verdict. The similiter is in strictness no part of the pleadings; it merely expresses the concurrence of the party, to whom the issue is tendered, with his adversary, in referring the trial to the jury. Gould, Pl. 315.

Where the plea does not refer the trial to the country, but leaves that to be done by the replication, the rule is different. Price v. Sinclair, 5 S. & M. 258.

The other reason assigned cannot avail, because the demurrer was confessed, and leave given to plead farther.

The judgment is affirmed.  