
    Laverty and others vs. Murray.
    Where a replication is put in, taking issue upon the matter alleged by way of defence in » special plea, so that the same may be fairly tried, and the plaintiff notice the cause for trial, he may proceed and take an inquest, notwithstanding that mbsequently and within twenty days after the replication, he is served with a general demurrer to the replication. The inquest taken under such circumstances will not be set aside as irregularly obtained.
    
      [657] Motion to set aside inquest. The suit was commenced in December last, by the service of a declaration containing a count on a promissory note and the common money counts. On the 26th December, the defendant pleaded specially, that before the commencement of the suit, to wit, on, &c., the plaintiffs for a valuable consideration agreed to give time of payment until the first day of January, 1837. The plaintiffs’ attorney, believing the plea to ha false, and knowing that he might apply to have it struck out upon that ground, instead of taking that course, put in a replication denying that the plaintiffs for a valuable consideration agreed to give time, Syc., concluding to the country, and adding a similiter, which on the 31st December was served on the defendant’s attorney, together with a notice of trial for the Essex circuit, to be held on the third Wednesday of January. On the 16th January the defendant served a general demurrer. The plaintiffs’ attorney disregarded the demurrer, took an inquest and entered judgment on the same, on the 28th day of January, and issued an execution. On these facts the defendant moved to set aside the inquest and all subsequent proceedings. The plaintiffs made an affidavit that the plea was false.'
   By the Court,

Bronson, J.

I am satisfied that the demurrer was not put in in good faith ; the question of fact raised by the pleadings might have been fairly tried. The plaintiffs’ attorney was right in the course he adopted. (14 Johns. R. 345. 1 Cowen, 152, 154.) The motion is denied for the reason above suggested; and not on the ground of the falsity of the plea. Motion denied.  