Field v. Hawley ( 1849 )

Mr. Justice Clayton

delivered the opinion of the court.

This is an action of assumpsit, to which the plea of non-assumpsit was filed, which was submitted to the jury without the addition of a similiter. This is now assigned for error.

In Smith v. Warren, 2 How. 895, it was decided that such a defect was cured by the verdict. The similiter is in strictness no part of the pleadings; it merely expresses the concurrence of the party, to whom the issue is tendered, with his adversary, in referring the trial to the jury. Gould, Pl. 315.

Where the plea does not refer the trial to the country, but leaves that to be done by the replication, the rule is different. Price v. Sinclair, 5 S. & M. 258.

The other reason assigned cannot avail, because the demurrer was confessed, and leave given to plead farther.

The judgment is affirmed.