
    A. A. HASKINS, Plaintiff in Error, vs. HENRY L. WILSON, Defendant in Error.
    ERROR TO COLUMBIA. CIRCUIT COURT.
    When an issue of fact is made in a cause, it must be tried by a jury, unless the parties consent to a trial by the court; and this, whether the defendant appears to defend on the trial or not.
    This was an action of assumpsit on a promissory note, commenced by service of declaration and rule to plead. The declaration was filed October 9, 1851. At the May term, 1852, the defendant filed a. plea of the general issue, and at the same term judgment was entered in the follpwing form :
    “ Third day of the term. — Now at this day, this cause coming on to be heard, and the said defendant failing to appear and defend himself herein, on motion of the said plaintiff, it appearing to the satisfaction of the court what the damages of the said plaintiff are, it is ordered that the said plaintiff have and recover of the said defendant the sum of two hundred aDd twenty-five dollars and ninety cents damages, together with his proper costs and charges by him, about his suit in this behalf expended, and that he have execution therefor.”
   Per Curiam.

The judgment is erroneous. An issue having been formed by the defendant’s plea, it should have been' tried by a jury unless waived by the parties. This was not done ; but the court proceeded to try the issue of fact and render judgment. This could not be done but by the consent of the parties. If the plea was not properly upon the files, it should have been stricken off, then the defendant’s defanlt and interlocutory judgment might have been entered, and the damages assessed in the usual manner.

Judgment reversed.  