This was an action of debt brought by Hershy against Beebe. The defendant below filed a plea averring part payment, to which issue was joined, and found for the plaintiff. Beebe has brought the case to this court, and assigns for error that the plaintiff below discontinued his action by replying to his plea of part payment without taking judgment by nil dicit for the part unanswered.
The question thus presented has been settled at the present term in Beebe vs. Sutton. The rule as contended for by the plaintiff in error, is purely technical, and has neither justice nor good sense to support it. It was adopted in England at a time when as much regard was had to form as to substance, but it is inapplicable to proceedings in the courts of this State, where mere technical forms are made to yield to substantial justice. We cannot endorse the position that a defendant can defeat the plaintiff’s action by filing a defective plea. The plaintiff below, by taking issue upon the plea of part payment without taking judgment for the part unanswered did not discontinue his action, and the issue having been found for him, he was entitled to judgment for the amount of his demand. Let the judgment be affirmed.