¶1"We can discover nothing in the least irregular in this proceeding. To the first count, the defendant filed a plea in bar, on which the plaintiff took issue. Subsequently the default of the defendant was entered upon the other three counts, and a jury was sworn to try the issue formed, and also to assess the damages on those counts on which the default was entered. The complaint is, that the default was not entered simultaneously with the formation of the issue on the plea filed to the first count. The doctrine of discontinuance by not taking judgment by nil dicit, for the part of the declaration unanswered, where the plea upon which issue is taken only professes to answer a part, when properly understood, does not apply where there are several counts in a declaration and the plea is filed to but one, or a part of those counts, and is a complete answer to these, leaving the other counts unanswered. In the application of this doctrine, each count should be considered as a separate declaration, as it in fact is, and if a plea professes to answer but a part of one of these counts or declarations, and in fact does answer but a part; as where the count is for taking three hundred sheep and the plea justifies the taking of two hundred of the sheep, and the plaintiff take issue on the plea without taking judgment for the hundred not justified, there is the technical discontinuance, unless he applies to the court for leave subsequently, to take judgment for the part unanswered. It is said he must do this at the same time at which he takes issue on the plea. This we do not think is indispensable. If he will take judgment by nil dicit before the trial of the issue, it should be deemed sufficient. The rule is an artificial and an arbitrary one, without any sensible reason to support it, and is by no means entitled to the favorable consideration of the court, and we are disposed to enforce it only when there is no other alternative.
¶2If the general issue had been filed to the whole of the first declaration, then the authorities showing that it should stand to the amended declaration would apply. But the plea was only to the common counts, and these were dismissed by the plaintiff. Subsequently he toot leave to amend his declaration, and in his amended declaration he inserted the common counts. This imposed upon the defendant the necessity of answering the amended declaration, unless he had a plea which would answer any declaration in that form of action. A plea which answered but one count in the old declaration would not stand to a similar count in the amended declaration.
¶3The judgment must be affirmed.
¶4Judgment affirmed.