Majority
p. 200Taylor and others vs. Frost and others, read affidavits excusing the default, and asked to have the same set aside, to the end that the demurrer might be argued. read an affidavit showing that the cause, had been noticed for trial on the plea of the general issúe,.and that it was a casé where the defences set úp in the special pleas could bé given in evidence under the general issue.
Headnote
A judgment for the plaintiff on demurrer to a special plea, taken by, default, will no* be set asidé, though sufficiently excused,' where there is a plea of the general issue under which the matter of the special plea can be given in evidence.Action on the case; the defendants pleaded hot guilty, and two special pleas. The plaintiffs demurred to the special pleas, and gave notice of bringing on the argument on the ground of the frivolousness of the pleas; and at the last January term they obtained judgment on the demurrer by default.
J. Edwards, for the defendants,
J. A. Spencer, for the plaintiffs,
The defaúlt, though regularly taken, is sufficiéntly excused, and it would be feet aside on terms, if that course was essential to the rights of the defendants. But it is not. The matters sét úp in the special pléas may be given in evidence under the general issúé; and I think we ought not to interfere. Setting aside the default, ánd allowing an argument on the Sufficiency of the spécial pleas, would only causé délay, wiííióút answering any valuable eiid to either party.
Motion denied.