The averment in the declaration, as to the acknowledgment of satisfaction on the execution, was unnecessary. If such acknowledgment of satisfaction had been pleaded by the defendant, the plaintiff might then have replied and proved the mistake. But taking together all the averments in the declaration, (the truth of which is admitted by the demurrer,) it sufficiently shows that full satisfaction was acknowledged by mistake; and for that portion of the judgment which remains unsatisfied, this action may well be maintained.
Demurrer overruled, cmd case remitted to court of common pleas.
The defendant then filed an answer, in which he denied all the allegations in the declaration; and alleged that, if the plaintiff should prove the issuing of any execution as alleged, the defendant gave a note in satisfaction of the alleged judgment and execution to the plaintiff’s attorney, who received the same in satisfaction of the execution.
A trial was had in the court of common pleas at October term 1858, before Bishop, J., who, after verdict for the plaintiff. *276signed a bill of exceptions, the material part of which is stated in the opinion.
I. Sumner & J. E. Field, for the defendant. M. Wilcox, for the plaintiff Hoar, J.The exception to the rejection of the defendant’s evidence that, at the time of giving the note to the plaintiff’s attorney, he also gave him, for the residue of the judgment, some money and a check, which had since been paid, cannot prevail, because the defendant has not set forth in his answer any other payment than a payment by note. The evidence offered did not tend to prove any fact at issue between the parties.
The remaining exceptions are all taken to the exclusion of evidence which the defendant offered in order to show that William A. Forbes should have been joined with him as a co-defendant in the action, or to evidence offered by the plaintiff to prove the reason which he had assigned in his declaration for not joining Forbes as a defendant. Without considering in detail the several rulings of the judge who tried the cause, or giving any decision upon them, we find an answer to the exceptions, which is in our judgment conclusive. To what issue was all this evidence applicable 1 If to any, certainly to the issue whether Forbes should have been joined as a defendant. This is not an issue which would determine any matter in bar. If it were found that he should have been joined, it would be no bar to the plaintiff’s action, but would only abate his writ. The judgment of the court, if such an issue were found for the defendant, could only be that the writ abate. But, in the first place, there was no answer in abatement, according to the provisions of the practice act, filed in the case, to raise such an issue ; and secondly, no exceptions lie to the decisions of the court of common pleas upon pleas in abatement, so that, if this answer could be construed as an answer in abatement, the judgment upon it is not the subject of exception.
Exceptions overruled,.