¶1 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.
¶2 Thought the plaintiff was entitled to judgment upon his motion and that the plea could not be received without disclosing merits.