The appellee, who was the plaintiff, sued Knight, upon a promissory note, for the payment of six hundred and three dollars thirty cents. Defendant’s answer contains two paragraphs: 1. Set-off. 2. That this suit was originally instituted in the Morgan Circuit Court, at the *92special July term thereof, 1860, and was not a cause pending ■in said Court at a regular term.
Ii. L. and T. _D. Walpole, and Gordon Tanner, for the appellant. H. Seerest and >$. Turman, for the appellee.To the first defense the plaintiff replied by a general denial, and to the second he demurred. The demurrer was sustained. The Court tried the issues, and found for the plaintiff. New trial refused, and judgment, etc. The sustaining of the demurrer to the second defense is assigned for error. There is nothing in that assignment. See Acts of 1858, p. 37. A suit may be brought to a special term, and the same tried and determined at such term.
The judgment is affirmed, with costs and five per cent, damages.