delivered the opinion of the court.

If the judge who presided in this case had known the state of the pleadings, the probability is that he would not have suffered the parties to have gone to trial. But after verdict, we must take the case as we find it, and determine it according to the statement of facts which it presents. — • As the defendant has not denied the plaintiff’s replication, it must be taken as true. We must presume every thing against the party who refuses or neglects to put in his plea, otherwise he would derive an advantage from his own wrong, which is not to be; allowed.

A new trial must he granted.