delivered the following as the resolution of the court:

The court is of opinion that the case was prematurely set for hearing, that being done at rules at the instance of the plaintiff, one month after the answer and replication thereto; and as it does not distinctly appear that at the hearing of the case, the defendant, in person or by counsel, appeared and was heard, the court below ought not to have’ proceeded to hear the case and render a decree therein. Had the record distinctly shewn that the defendant appeared at the hearing, in person or by counsel, the court might properly imply, that as no objection appears in the record to have been taken to the said irregularity at rules, the objection thereto was waived, and the cause heard by consent, though such consent was not expressly stated on the record. For the irregularity aforesaid, the court is of opinion that the decree is erroneous. Therefore the said decree is reversed with costs. And the cause is remanded, with directions to the court below to send the case to rules, there to remain for two months before it shall be set for hearing at the instance of either party, (unless it be set for hearing before the lapse of the two months by the consent of parties,) and for such decree in the case after it shall be set for hearing, as may be proper.