
    ARTHUR HOPKINS, appellant, vs. JESSE PRESTON, appellee.
    
    
      26 Oct. 1819.
    
    
      On an appeal from a judgment of the Cumberland circuit court.
    On a common order confirmed, tis irregular to awear the jury to try the issue."
    
      Talbot for appellant, Bibb contra.
   Judge Owsley

delivered the opinion of the court.

A common order having been taken in this cause, and no plea filed or issue joined, it was irregular to swear the jury to try the issue, and, consequently, the judgment rendered in favor of the defendant in the circuit, must be reversed with cost, and the cause remanded to that court for further proceedings not inconsistent with this opinion.  