
    The Administrators of Wm. Porter vs. John Kenny.
    Where the parties go to trial with the proceeding's in an unfinished state* the party in default shall not be permitted to take advantage of it,— Whatever is alleged on one side, and. tioi denied on the other, shall be taken as true.
    
      m JL-HIS was an action of assumpsit, on a promissory note, tried at Columbia, Spring Term, 1821.
    The defendant pleaded that he had not promised to pay within four years. The defendant in his replication set out a promise on a particular day, and that within four years irom that day, his intestate had commenced an action which had been continued from time to time, until a particular day, when the action abated by the death of the plajntiif, and that this action had been commenced within a year from that time. Here the pleadings ended.
    In that imperfect state of the pleadings, the parties went to trial, and a verdict was found for the defendant.
    This was a motion for a new trial, on the ground that the verdict wgs contrary to law and evidence,
    
      Millerf for the motion.
    
      IV. F. Da Saussure, contra.
   Mr. Justice Noit

delivered the opinion of the court.

If the judge who presided in this case had known the state of the pleadings, the probability is that he would not have suffered the parties to have gone to trial. But after verdict, we must take the case as we find it, and determine it according to the statement of facts which it presents. — • As the defendant has not denied the plaintiff’s replication, it must be taken as true. We must presume every thing against the party who refuses or neglects to put in his plea, otherwise he would derive an advantage from his own wrong, which is not to be; allowed.

A new trial must he granted.

Justices Colcock, Johnson, Richardson and iluger, concurred.  