Majority
p. 595Gourlay vs. Hutton. ALBANY, Dec. 1833.
Headnote
On setting aside a default for not pleading, the court will not impose the condition that the party shall not plead the statxite oj limitations.• On a motion by the defendant to set aside a default and to be let in to plead, the plaintiff read an affidavit on the strength of which he prayed that the defendant, if let in to plead, should be restricted from pleading the statute of limitations.
p. 596
By the Court,
Where a party hasput in a plea, and asks leave to withdraw it for the purpose of pleading anew, or to add a new plea, the court impose a condition like that asked for here, but not in a case like this of an ordinary application to set aside a default. The default here is excused, and the defendant has leave to plead upon the usual terms.