Castleberry v. Pearce , 2 Stew. & P. 141 ( 1832 )

Per curiam.

From several circumstances, we are authorised to infer, that an issue in fact, going to the merits of the action, had been found by the pleadings, and since lost from the record; or that the parties consented to go to trial as on an issue. The record shews that the jury were sworn to try the issue joined. And the jury in their verdict, set out that they find the issue in favor of the plaintiff. To conclude that there had been no issue, would be falsifying the record.

Again, the circumstance of the cause having been continued on the affidavit of the defendant, three several times, affords strong grounds to believe that the pleadings had been made up.

The fact, that a want of an issue was not assigned as a ground for the arrest of the judgment, in the court below, affords a further, and a .strong presumption, that there was an issue at the time the motion was entered.

There'is nothing in the second assignment.

The judgment must be affirmed.