
    Turner against Dexter.
    On amotion court ;n’quire “°farth<? intB the amend- ^ not frivolous
    ]0Wed a defenby^addtog^a notice of special matter, though it was doubtful whether it was a defence at law, °* ^longed exclusively to equity.
    Motion for leave to add to the plea of non est factum, a notice of special matter, to be given in evidence as a defence, which was set forth at large in the defendant’s añidavit. The action was covenant. The defendant’s- attorney omitted to plead, or give notice of the special matter, supposing this unnecessary, till a few days before the circuit at which the cause was noticed for trial, when counsel advised to give the notice, but the plaintiff’s attorney refused to receive it. ' 0 '
    
      O. G. Otis, for the motion.
    
      I. S. Tallmadge. contra.
    The argument against the application went mainly on the ground that the matter set forth in the notice was not a defence. But
   Per Curiam.

The matter set forth in the notice proposed to be given is not frivolous; though there is doubt, perhaps, Whether the defendant can avail himself of it at law, and must not go to his bill in Equity. But on application to amend, we will not inquire into the merits of the amendment, farther than to see that it is not plainly fiivolous.

Motion granted, on terms.  