This was a writ of review, sued out from the court of common pleas on the 28th of November, 1848, to reverse a judgment recovered in that court at the September term, 1848, by Lehan, in an action brought by him against Good, in which action Good was defaulted. At the December term, 1849, of the court of common pleas, Lehan pleaded in abatement of the writ of review, that the same had been materially altered and changed since the issuing of the same.
¶2law, that if an issue of fact is joined to the jury on a plea in *302abatement and found for the plaintiff, a judgment in chief shall be entered in his favor.* This rule extends to all dilatory pleas in civil actions. The plaintiff", therefore, in such cases should be prepared to prove his damages, but if the damages should not be found by the jury to whom the issue of fact is submitted, they may be assessed by the court, as upon default, or the question of damages may be submitted to another jury. The omission to have the damages assessed by the jury, who try the issue of fact, furnishes no sufficient ground for setting aside the verdict. Boston Glass Manufactory v. Langdon, 24 Pick. 49; Frye v. Hinkley, 6 Shepl. 320 ; 2 Greenl. Ev. § 27; Howe’s Prac. 215 ; Gould Pl. 300. This case very clearly comes within this well established principle. Here was an-issue of fact on a plea in abatement submitted to the jury and found for the plaintiff, and judgment in chief should, of course, have been entered for the plaintiff.
¶3The exceptions of the defendant are therefore so far sustained as to set aside all the rulings, orders and proceedings of the court subsequent to the verdict, and the action will stand in this court open to a motion on the part of the plaintiff for judgment in chief on the verdict.
¶4 By St. 1852, c. 312, § 28, after an issue of fact found against the defendant on an answer in abatement, “ the defendant may have leave to amend such answer in abatement, or to answer over, by special order of the court, for good cause shown, and not otherwise.”
