On considexung this case the following errors present themselves : 1st. The caxxse was improperly traxxsferred from the rule to the court docket before an issue was made up. 2d. The pleadings were had in court when, by law, they should have been in the office at the xuxles. 3d. The issue is immaterial being joined not on the facts pleaded by the defendant, but on a point of law arising out of those facts.
Therefore, it is considered by the court, that the judgment aforesaid be reversed, annulled, and set aside; that the cause be remanded to the court from whence it came for new proceedings to be had therein, to commence from the declaration, and that the plaintiff recover of the defendaxxt his costs in this behalf expended, which is ordered to be certified to the circuit court of Christian county.