¶1It is true that a party who consents to go to trial without a plea or an issue, waives exception to the want of either of them; but he waives nothing where the- cause has been tried in his absence, and consequently without his consent. It is said, however, that the court directed the cause to be put on the trial list; and that the affidavit of defence contained the substance of a plea. The court having unlimited power to impose terms, might have directed it to stand for one, and that the parties should go to trial on the facts contained in it. But the court omitted to do so, and the defendant had no reason to suppose the plaintiff would waive the benefit of a formal plea, and try the cause without being at issue. It was not legitimately on the trial list, and to bring it on in the defendant’s absence, was to take him by surprise. He is not precluded, therefore, by any of his acts, from alleging the want of a plea as error, or moving it in arrest of judgment.
¶2Judgment reversed, and a venire de novo awarded.