#### Eli Foster, plaintiff in error v. Harvey Filley, defendant in error.

Error to Madison.

Where, after pleading, a defendant stipulated that judgment might go as by default, on his failure to file a paper on a given day; and on such failure, judgment by default was entered notwithstanding the plea: Held, that there was no error.

Judgment was rendered in this cause at the February term, 1836, of the Madison Circuit Court, the Hon. Sidney Breese presiding.

A. Cowles, for Davis & Krum, for the plaintiff in error.

Walter B. Scates, for the defendant in error.

Lockwood, Justice,

delivered the opinion of the Court:

Filley commenced an action of assumpsit upon a promissory note in the Madison Circuit Court. The defendant below pleaded non assumpsit. Subsequently the defendant agreed that in the event a certain paper was not filed on a particular day, that judgment might be entered as by default. The paper was not filed, and judgment was entered the day after, by default. The error relied on, is, that there was a plea on file not disposed of when the judgment was rendered. The Court is of opinion that the plea was waived by the written agreement on file in the Circuit Court, and that the judgment was correctly given by default.

Judgment is therefore affirmed with costs.

Judgment affirmed.