One of the errors assigned is, “that the jury were sworn to try the issue joined between the parties, although no plea had been filed, and no issue made up in the cause.” The part of the record, which relates to this point, stands thus: “On motion of the defendant by his attorney, it is ordered the judgment entered against him, and John Edmiston his appearance bail, by rules in the clerk’s office, be set aside, and by his attorney defends the force and injury when, &e.” On which, the court is of opinion, that the error does exist, and is not cured by any of the act of jeofails. Wherefore, *227it is considered by the court, that the judgment aforesaid be reversed and set aside, that the suit be remanded to the Fayette circuit court, and placed on the issue docket thereof, and that the proceedings commence from setting aside the writ of inquiry; and that the plaintiff recover of the defendant his costs in this behalf expended, which is ordered to be certified to the said court.