delivered the opinion of the court.

This was a petition to foreclose a mortgage. The defendant pleaded that she did not undertake and promise, as the plaintiff alledged, &e., *556and secondly that she was, and still is the wife of John Sutton. The plaintiff replied to the second plea of coverture, four replications, not material to be noticed here. At the July term, 1845, the plaintiff appeared by attorney, and not requiring a jury, the issue of non-as-sumpsit was found by the court, and a judgment of nil dicit being given on the replications, the court assessed damages, &e. This case is precisely within the principle of Pratte and Cabanne vs. Corl, 9 M. R. p. 164, in which it was held that the provision of the practice act, which authorizes the courts to try issues of fact where neither party requires a jury, is only applicable where both parties are present, and in a situation to make an election.

The judgment must be reversed, and the cause remanded.