
    John Price vs. Duncan L. Sinclair.
    It is error, where there is a plea of payment undisposed, of in the case, to submit the cause to the jury upon a plea of non assumpsit. If the plea of payment be not answered, or otherwise disposed of, the judgment will be erroneous.
    If a plea be in the record, filed at a term subsequent to the return (or impar-lance) term, it is presumed to have been so filed with the permission of the court; and it will be error not to respond to it.
    A plea of payment, without an account of set-off, is nevertheless a good plea, and the defendant under it may prove either a partial or total payment in money, by parol or written evidence.
    Pleadings are equally defective, whether plead improperly in point of time or point of law ; if the former, the propriety of the pleading must be tested by a motion to strike out.
    In error, from the Simpson circuit court.
    Duncan L. Sinclair, the defendant in error, instituted his action of assumpsit, on an open account, against John Price, the plaintiff in error, to the May term, 1842. At that term there was a plea of non assumpsit by the plaintiff in error, and the cause was continued till the November term, 1842. At the last term the defendant in error took issue on this plea ;■ the plaintiff in error also then filed a plea of payment, to which there was no replication. There was a verdict for the defendant in error’ on the issue joined, but no disposition made of the plea of payment, and judgment for defendant in error was rendered by the court, and this is assigned for error in this court.
    Swann, for plaintiff in error.
    This court has several times decided, that a judgment cannot be rendered without a replication to proper pleas filed. Webster v. Tiernan, 4 How. 352, and other cases.
    
      T. P. Ware, for defendant in error.
    In behalf of the defendant in error, it is admitted as a correct principle of practice, and repeatedly recognized by this court, that it is error to take a verdict or judgment, without answering a valid plea.
    Prior to the act approved 22d February, 1840, (Acts of 1840, p. 132,) “ to regulate the practice of the circuit courts,” there was no limit or restriction on the rights of parties to extend, amend, and multiply the pleadings at any time before trial, and within the discretion of the court; and whenever the record exhibited any extension of the pleading, this court always regarded it as being by the sanction of the court below. This has not been the case, however, since the passage of the act alluded to, and now a presumption can only be indulged in favor of new and additional pleas, where the record is silent as to the time when filed,'or where the defence set up at the trial term is such in its nature as to allow the inference, that it could not have been “ ascertained ” at the return term ; or where the issue tendered at the first term was immaterial. The two last seem to be the only exceptions in the act, authorizing the defendant to file new pleas. When the pleadings are defective, or imperfect, they may be amended, it is true; but this language in the act evidently applies to any technical defects or informalities found in the pleas already filed, and the parties are brought to trial “instanter” on the issue or issues already made up. But to extend this language into an authority to introduce new pleas, and thereby tender an issue of facts not anticipated by the plaintiff, and while he is prepared only for the issue offered him at the appearance term, would not only give an undue advantage to the defendant, but subvert the evident object of the act, and leave the law precisely (in substance) as it stood before.
    In this case, as appears by the record, the general issue was filed at the first term, and the plea of payment was added at the subsequent term. Now is there anything which can save the plaintiff in error from the operation of the statute of 1840, restricting the discretion of the circuit judge % Can he claim any benefit, under either of the exceptions contained in the act 1
    
      He cannot, under the clause in the second section, requiring pleadings to be made up at the first term, “ as far as can be ascertained.” The plea of payment presents a fact,' which, if true, was as perfectly in the knowledge of the defendant, and perhaps more clear in his recollection, at the first term, than it could be at the subsequent term; and thus it would be an absurdity to say, that the fact of payment by the defendant could not have been “ ascertained” by him at the first term.
    And as the record further shows, that the plea filed at the first term was not imperfect or defective, the appellant derives no privilege under'the third section of the act, to change or enlarge the pleading. Also no presumption can be indulged, that the pleas were filed in due time ; the record showing, affirmatively, that the plea of payment was at the second term of the court.
    It also appears, affirmatively, that the plea filed at the first term was not immaterial.
    Swann, in reply.
    For the plaintiff in error, in reply to the argument of the counsel for defendant in error, it is submitted,
    That the act of 1840, “to regulate the practice of the circuit courts,” does not relieve this case of the error assigned. This statute, (Acts 1840, p. 133,) only gives a term to defendants to prepare the cause for trial, on “ the merits of the controversy.” It does not, by any necessary construction, abridge the right of defendants (How. & Hutch. 589, sec. 1,) to plead “ as many several matters” as he may judge necessary to his defence, nor the discretion of the court (lb. 591, sec. 14,) to allow all necessary amendments before verdict. The third section of the act expressly saves to the court the exercise of this discretion ; and indeed makes it, if possible, more imperative on the judge holding the court, to cause all proper amendments to be made, in order that the cause may be “fairly put to the jury,” at the second term ; “ and if it shall be discovered at the trial term that the pleadings are defective, or issues tendered and accepted are immaterial, it shall be the duty of such court, and the judge holding the same is hereby required to cause the same to be amended and perfected instanter, so that the merits of the controversy shall be fairly put to the jury at said second term,” &c. Acts of 1840, 133.
    Now this plea of payment is found in the record, in the right place, before the jury came, and it will be presumed by this court that it was allowed by the court below, on a proper showing. Tomlenson Sp Collins v. Hoyt, 1 S. & M. 518.
    It is also respectfully submitted, that this court will, upon the record, not only reverse the judgment below, but here enter a judgment for the defendant. How. & Hutch. 532, sec. 9. There is no “ matter of fact” to “be ascertained,” so that the cause should be remanded, but on the record a final judgment-may be rendered, in this court. The plea presented a fact in legal form, which constituted, if true, a perfect ground of discharge for the plaintiff in error in that court. The failure to answer the plea, and take issue upon it, constitutes an admission of its truth, and entitled the defendant in the court below to a judgment, notwithstanding the verdict. 4 How. 355, in point.
    
    This view of the case derives additional force from a consideration of the act of 1840, sec. 3, above adverted to. It is presumable that the court, at the trial term, (as required by the act) required the issue on the plea filed to be “perfected instanter, ” and that the plaintiff below could not gainsay the fact pleaded. If he could, it may be well supposed he would. This court will not now send the cause back, to give him an opportunity to do what he might have done, but voluntarily neglected or refused to do.
   Mr. Justice ThaoheR

delivered the opinion of the court.

Sinclair instituted his action of assumpsit at the May term, 1842, of the Simpson county circuit court, against Price, upon an open account for work and labor. At this term the defendant below pleaded non assumpsit, and the cause was continued. At the next succeeding term the plaintiff took issue on the plea of non assumpsit, and defendant further pleaded a plea of payment. In this state of pleadings, without a reply to or a disposal of the plea of payment, the parties went to trial, and the plaintiff below recovered debt and costs.

Some disposition should have been made of the plea of payment. This plea, having been filed at the issue term of the cause, is presumed to have been so done, urith the leave of the court, first had and obtained. The plea being filed, without an account stating its nature, or the items of payment or set-off annexed, is nevertheless good, and notified the plaintiff below of an intention to attempt to prove either a partial or total payment in money, and either by oral proof or written, as by receipt. This payment might have been by Price’s agent, or in any other mode not ascertained by him at the time of the return term, At any rate, the plea could not be disregarded ; and had the plaintiff desired to contest its legality, under the statute of 1840, regulating the practice of circuit courts, he should have moved to strike it out, at the issue term, when the court is required by that statute to perfect the pleadings instanter. Pleadings are equally defective, whether plead improperly in point of time, or in point of law. It has been repeatedly held here, that a valid and substantial plea, unanswered or undisposed of at the time of jndment, is error.

The judgment of the court below must be reversed, and the cause remanded for further proceedings.  