The opinion
Tilghman C. J. “
It appears by the record that payment * • * * was pleaded, with leave to give the special matter m «¡vi *34 dence, but there is no mention of the issue being joined. I am always sorry to reverse a judgment after a trial of the merits* and the case has therefore been held under consideration since the 'last term, to search for precedents. No case however has been found to warrant a judgment of affirmance. The farthest that-the Court has gone, was in the case of Myer v. Herring, determined at Philadelphia in December 1806. That was an action of covenant. The plaintiff assigned breaches in his declaration, the defendant pleaded covenants performed and non damnificatus, and after that the words “ and issues,” were entered on the docquet. It was decided that this was sufficient, because the mention of issues was tantamount to a direction to the clerk to join the issues, and the not doing of it was in the nature of a clerical omission. I should have been extremely glad if the entry had been the same in this case* but some principle must be adhered to, least in an attempt to do justice in a particular case, we do a public injury, by taking away all certainty. I am of opinion that the judgment must be reversed.
Yeates J. Of the same opinion.
Br.ackenr.idge J. Of the same opinion.
Judgment reversed.