By the Court,
Sutherland, J.All a party loses, who has omitted to file an affidavit of merits, when an inquest is taken against him in a cause out of its regular order on the calendar, is his right of challenge of the j'ury, and to produce testimony and examine witnesses on his part. He is entitled to appear and cross-examine the plaintiff’s witnesses; to object to evidence ; to raise objections to the plaintiff’s right of recovery; and to take exceptions to the decisions and opinions of the judge. The defendant in this case; having been refused the right to cross-examine the witnesses, and to take exceptions to the opinions of the court, the inquest is set aside, the costs to abide the event of the suit.