It appears in this case that an issue was made up in the cause, and that a judgment was given for the plaintiff, on motion, without trying the issue, Or without the issue being waived by the parties. Therefore, it is considered by the court, that the judgment aforesaid be reversed and set aside; that the cause be remanded to the court from whence it came, to be placed on the issue docket, with directions to proceed to a trial of the issue, and that the plaintiff recover of the defendant his costs in this behalf expended, which is ordered to be certified to the said court.