It is error in the Circuit Court to strike out the plea of non-assumpsit in short, after the case has been once tried upon it with other pleas, where the defense could not be given in evidence under the other pleas. (See Carr v. Stevenson, 5 Hum, 559; Alsbrook v. Hathaway, 3 Sn., 454; Boyers v. Pratt, 1 Hum., 90. And, since the Code, Grant v. Jennings, 1 Cold., 53.)
In Error. — The defendant below pleaded in the County Court two pleas, and after the cause was removed into the Circuit Court, the defendant's attorney write on the trial docket where the other pleas stood, non-assumpsit, and signed his name; and in the term a jury found a verdict. The verdict, was set aside, and the cause continued on the docket for several subsequent terms; at each term being brought forward on the trial docket with this plea as well as the others: and finally, at a late term, a verdict was given. In the term when given, the attorney who put in this plea being absent, and leave to plead it when he did, not being found on the minute docket or other record, the Court struck it out and the verdict was taken on the two others. The matter of the defence could not be given in evidence upon the two former pleas.
Per Curiam. Roane and Haywood, JJ. —
It cannot be alleged that the plaintiff had no notice of the plea. He hath at one time tried the cause under it and saw it continued on the docket at every intermediate term up to that in which the last verdict was given. The projection of the plea by the Court, was, in effect, a rejection of the facts which the defendant intended to prove, and which, if proved, would have been material.
Reverse the judgment, and remand it to the Circuit Court to be tried upon the issue of non-assumpsit, as well as those joined in the other pleas.