The defendant below entered a motion for a continuance, because an account was not filed under the common counts, ten days before the commencement of the term. The court overruled his motion, which is assigned for error. This was a failure to comply with the express requirements of the statute, and by its terms the defendant below was entitled to a continuance. The plaintiffs below, however, might have avoided a continuance by filing a stipulation that they would rely alone on the note sued on as evidence on the trial, or they might have entered a nolle prosequi to the common counts, which would have produced the same result. But having failed to do either, it was error to overrule the motion for a continuance, for which the judgment must be reversed, and the cause remanded.

Judgment reversed.