Opinion of the Court by

The demand of the account of appellant against decedent Epperson from from his administrator, with the proper affidavits, sufficiently appears. But if it did not it is to late after answer and issue and jury sworn, to have the suit dismissed upon rule though it was sued out and response thereto before the jury were sworn.

The failure to have the rule disposed of before issue on the merits and jury, must be regarded as a waiver of the rule.

Having dismissed the plaintiff’s petition, which confessed the note and account set up in the cross action as a set-off against the plaintiff’s claim, he should then have been allowed to answer *563the cross suit and set up his account as a defense to such cross action.

For these errors the judgment is reversed with directions to proceed to trial on the merits, as herein indicated.