
    William Rushing vs. Chisley D. Key, et al.
    It is error to submit a cause to the jury when a plea of payment with list of offsets is filed in the record without any disposition being made of it.
    In error from the Tishemingo circuit court.
    Chisley D. Key and Ezekiel Key, partners in trade under the firm and style of C. D. & E. Key, brought their action of debt for the use of E. Key, in the Tishemingo circuit court, against William Rushing, the plaintiff in error, as assignee of J. C. Griner, on two writings obligatory for $ 100 each'. Both notes are declared upon in the same count. The defendant in the court below, appeared and plead payment to the'assignor, J. C. Griner, before the assignments, and gave notice in said plea of an offset of sundry sums specified in said plea. This plea is in the usual form, and concludes with a verification; to which there is no replication, and it stands in the record unanswered. The record states that on the 15th day of October, 1840, the cause came on for trial, and “therefore came a jury, of good and lawful men, to wit, Derosey Carroll and eleven others, who being duly elected, tried and sworn the issue to try,” &c. returned a verdict for the plaintiffs for the debt and interest. It is said in the record that the counsel for the plaintiffs moved the court for an instruction to the jury which is set out, but it is not stated whether it was granted or refused. Judgment was rendered on the verdict for the plaintiff and this writ of error prosecuted.
    
      Work and Calhoun, for plaintiff in error.
    It appears from the record, that judgment was rendered against the plaintiff in error in the court below, while his plea of payment remained unanswered. This was a good plea, and a bar to the action without a replication. To render judgment for the plaintiff in the court below, without a replication to this plea was a gross error, equaled only by empaneling a jury to try the issue, when no issue was made up. See Webster, et al. v. Tiernan, et al., 4 Howard, 352, and authorities there cited.
   Mr. Justice Thacher

delivered the opinion of the court.

This was an action of debt in the Tishemingo circuit court. To the declaration the defendant below filed a plea of payment, with list of offsets, to which plea the record shows no reply, answer, or other disposal thereof. Nevertheless, the case was submitted to a jury, and a verdict and judgment had for the plaintiff. This was error, according to the decision in Webster, et al. v. Tiernan, et al., 4 How. 355.

The judgment of the court below is therefore reversed, and the cause remanded for further proceedings.  