#### Charles McDonnell, Appellant, v. William Harter, for the use, etc., Appellee.

APPEAL FROM COOK COUNTY COURT OF COMMON PLEAS.

The Common Pleas should not assess damages, as if by default, while a plea of the general issue is on file, though verified by an insufficient affidavit. The plea should first be struck from the files.

This was an action of assumpsit. There was a plea of the general issue filed. The affidavit of merits to the plea, states that defendant had a good defense on the merits, except as to $458 of plaintiff’s demand. The court, with this plea on file, entered a default, and gave judgment for plaintiff.

W. H. L. Wallace, and Thomas Dent, for Appellant.

J. W. Chickering, and Shumway, Waite & Towne, for Appellee.

*29Caton, C. J.

The plea of the general issue was regularly filed, and was never stricken from the files. On this state of the record the court assessed the damages as if upon a default. If the affidavit of merits, which was filed with the general issue, was insufficient, the plea should have been stricken from the files. While it remained it was a bar to the action, till tried by a jury, or by the court with the consent of the parties in place of a jury, and found to be untrue. There was no such trial, nor indeed was there any issue formed on this plea. It stands upon the record as a simple naked bar to the action. The judgment must be reversed and the cause remanded.

Judgment reversed.