
    *Wirts vs. Norton and others.
    A plaintiff will not be permitted to retain a default entered for not pleading, where the only fault on the part of the defendant is the service of a copy of the affidavit of merits, instead of the original; the plaintiff is required in such case to apprise the defendant of the defect.
   Motion to set aside a default for not pleading. The defendants served a plea and a copy of the affidavit of merits, required by the practice of the court, instead of the original affidavit. The plaintiff treated the plea as a nullity, and entered the defendants’ default as for the want of a plea. The chief justice set aside the default as irregularly entered, holding, that the plea should have been returned and the defect stated.

Motion granted.  