delivered the opinion of the court.

This was an -action of trespass on the case in the court below, upon promises, &c. . .

The defendant below pleaded non assumpsit, and an issue Was tendered to the country. There was also a plea of part failure of consideration, which was unreplied to.

The parties went to trial on the issue to the country. The jury found a verdict for the plaintiff, upon which judgment was rendered.

It is now assigned for error, that the plea of part failure of consideration was unreplied to, and unnoticed.

If the plea was entitled to notice, the party pleading it could have taken his judgment by default, for want of a replication; but this he did not do, but went to trial on the issue of non assumpsit. This we deem a waiver of the plea unanswered.

As this is the only point necessary to be examined in the assignment of errors, the judgment must be affirmed with costs.

dissenting, and there being only two judges, the division of opinion operates as an affirmance.