Opinion of the Court by

While it is true that appellant did make a motion to transfer the cause to the equity docket, still, at a term subsequent thereto the record shows, the parties appeared and a jury was sworn *519without objection on the part of appellant to try the issue, was a waiver of the motion to transfer.

And as to the evidence of the acknowledgment of the debt as proved by the witness was within five years after the original contract was made, in such ease no direct promise to the creditor was necessary, even if otherwise necessary.

These propositions we regarded as too plain to require a formal discussion in the opinion.

And hence they were not particularly noticed.

Petition overruled.