Majority
p. 80Haskins ads. Griswold. moved for leave to withdraw his demurrer and plead issuably, on affidavit that he had merits which he did not know of till after he had filed his demurrer. Riggs insisted that as the demurrer was frivolous and only put in to obtain delay, the defendant ought not now to be permitted to withdraw it. He then read a counter affidavit on the point of merits, showing an acknowledgment on the part of the defendant, subsequent to the commencement of the suit, of the justness of the demand, and a promise to pay it.
BURR, for the defendant,
It appears upon the face of the de murrer itself, that it was frivolous and for the purpose of delay. If a defendant will put iñ a frivolous demurrer, and then applies to the grace of the court, he shall have none. He has acted unmeritoriously, and shall be held to summum jus.
The defendant must take nothing by his motion,,