
    DISHA vs. BOYCE.
    An action had been commenced in the county court, where a demurrer to the declaration was filed, when the case came on the attorney withdrew his demurrer and confessed judgment, the defendant not being present. Appeal to this court, and upon affidavit, it was moved for leave to plead payment. This was on the last day of the court, and the cause stood so far on the docket, that it was certain the court would not come to it. The affidavit stated that the defendant did not agree to, nor direct confession of judgment; that he was and still is sick, so that he cannot attend.
    
      Appellant may plead in the court above, on causes shewn.
    
      Smith for the plaintiff moved for judgment, upon the principle, that there was no defence.
   Per Humphreys j. and Overton j.—

The plaintiff cannot have judgment, until the cause is called in course. There is but one case where judgment will pass out of the order in which suits stand on the docket; where appeals are brought up by the appellee. The affidavit in this case is certainly defective, but as the plea may benefit the defendant and cannot put the plaintiff in any worse situation, it may be received. The onusprobandi of this plea will lie on the defendant, and as the cause cannot come on this term, no injury can arise from the reception of the plea.

Powel, j.

Thought the plaintiff was entitled to judgment upon his motion and that the plea could not be received without disclosing merits.  