delivered the opinion of the court.

This was an action of debt brought by the defendant in error, against the plaintiffs in error. No plea was filed in their behalf but instead of entering a judgment by default, a jury was empannelled to pass upon the issue, there being in fact no issue for their determination.

*662This is assigned as error, and is the only point involved. The error by the former decisions of this court, appears to have been regarded as fatal, and not cured by any of the statutes of amendments. 1 How. 24. 6 How. 193. The judgment will therefore be reversed and the cause remanded.