*410The Chief Justice, delivered the following opinion of the court: — The defendants in the court below, upon setting aside the office judgment, pleaded payment; and, on their motion, the cause was remanded to the rules,
The plaintiff, at a subsequent rule day, gave a rule to plead ; afterwards entered judgment per nil dicit, for want Qf a piea an(j had that judgment confirmed in court, without disposing ot the plea ol payment,
We are of opinion, an issue should have been made UP on ^ P^ea of payment, and tried by a jury : this not having been done, the judgment is erroneous. It appears that the proceedings in the cause, subsequent to the filing- of the declaration, have been very irregular ; and although some of those irregularities might not nave been sufficient to have reversed the judgment, to prevent further embarrassment, it will be best to correct theca.
Mien,, for the plaintiffs ; Clay, for the defendant.It is, th erefore, considered, that the judgpent aforesaid be reversed, with costs ; that the proceedings in the cause in the court below, subsequent to the filing of the declaration, be set aside; and that the suit be remanded to the court from whence it came that that court be directed to place the suit, on the rule docket, for new proceedings to be had; therein, from the time of filing the declaration. Which is ordered to be certified to said circuit court.