#### Merrit L. Covell, Ortogrul Covell, and Jesse W. Fell, plaintiffs in error v. Jacob Marks, defendant in error.

Error to McLean.

It is erroneous to take judgment by default where a plea of non-assumpsit is interposed. A jury should be empanelled to try the issue, whether the defendant be present or absent.

L. Davis and F. Forman, for the plaintiffs in error.

T. Ford, for the defendant in error.

Lockwood, Justice,

delivered the opinion of the Court:

It appears by the record in this case, that on the 26th day of September, 1837, the defendants filed their plea of non-assumpsit ; and on the, 27th of the same month, the Court below gave judgment by default against them. This was erroneous; the Circuit Court should have empanelled a jury and tried the cause, whether the defendants answered when called or not.

The judgment of the Court below is reversed with costs, and the cause remanded with directions to the Circuit Court to set aside the default.

Judgment reversed.

Note. See the preceding case.