It cannot be alleged that the plaintiff had no notice of the plea; he hath at one time tried the cause under *568it, and saw it' continued on the docket at every * intermediate term up to that in which the last verdict was given. The rejection of the plea by the court was in effect a rejection of the facts which the defendant intended to prove, and which if proved, would have been material.

Reverse the judgment, and remove it to the Circuit Court to be tried upon the issue of non assumpsit, as well as those joined in the other pleas.

See King’s Digest, 9443.