OPINION OF THE COURT — by the
Hon. POWHATTAN ELLIS.The plaintiff assigns for error the following facts: First, The court erred in taking judgment by default, when in fact the defendant below plead issuably to the declaration of the plaintiff: Secondly, The court should have directed a non suit. Looking to the record, I find the plaintiff Wilkinson, instituted his action of assumpsit against the defendant Selser, at the April term of 1822. The declaration is filed, to which there is a plea of payment, and judgment by default taken. I presume it need not be stated, it was wholly irregular for the court to enter up judg-*109msnt by default, when the defendant came in and plead payment, &c., which he was ready to verify, and prayed the judgment of the court. An issue should have been directed, and a jury empannelled to try the cause, or (he plea of payment waived by the defendant, to authorise the rendition of the judgment spread upon the record.
Let the judgment of the court below be reversed, and a venire de novo awarded.
Judges Hampton and Winston concurring.