
    Thomas Napier & Co. vs. Abraham Lipman.
    Tried before his Honor Judge Evahs, Charleston, January Term, 1837.
    This case was on issue docket, but I do not recollect how long it had been docketed. On the last day of the court, after all the cases on the docket were considered or continued to the next term, an application was niade by Mr. Moise, for leave to withdraw the pleas put in by the defendant, and for leave to plead de novo. This was resisted by Mr. O. M. Smith, on the ground, that he had no notice until the morning of that day, of the intended application. [ could see no objection to the motion ; nor can I now perceive in what possible manner the plaintiff can be prejudiced. The motion involves two distinct propositions. The first, to withdraw his pleas. This is a motion that 1 never before heard objected to, and has always, so far as my experience has gone, been granted, as a matter of course. Then the defendant stands without plea. He then applies for leave to plead, which is always granted of Course, where the plaintiff cannot, in any way, he delayed or hindered, in the trial of his case.
    JOSIAH J. EVANS.
    
      
      Grounds of Appeal.
    
    1. That iiot one day’s notice was given of the motion, and n«t cause shewn fot the motion ; even the plea, intended to be filed, not stated, is against law, and contrary to the practice of the court."
    2. That the said order is oppressive on the plaintiff, and subverts all the rules of pleading and practice.
    OLIVER M. SMITH, Plaintiff’s Attorney.
    
    O. M. Smith, for motion,
    Moise, contra.
    Filed 20th February, 1837.
   Mr. Justice Evans

delivered the opinion of the court.

The only ground argued and insisted on, in this court, is, that the order should not have been granted, but on the condition of paying costs. This is the usual term upon which such orders are made, and if it had been brought to my view, at the Circuit Court, would have been annexed to the order. The order is also defective, in not specifying the nature of the new plea. It must be an issuable ploa. The order of the Circuit Court is therefore amended, so as to read as follows : It is ordered, that the defendant have leave to withdraw his pleas, heretofore pleaded, and that he have' leave to plead a new issuable plea, on paying the costs of this amendment.

JOSÍAH J. EVANS.

We concur,

RICHARD GANTT,

3. B. O’NEALL,

J. S. RICHARDSON,

Á. B. BUTLER,-.  