
    Shultys against Owens.
    NEW-YORK,
    October 1817.
    Where an Issue to the country is tiered, amn. Jjy l^ea "t®, ¡í¿so days.1™1-r^bptart7 hs“¡k“ merely ^'’de!r?ai’.r ioi!'must he done, bona J&ie, for the pur-ring6. °£ demur* •
    
      MARCY, for the defendant, moved to set aside the inquest / 7 * taken in this cause for irregularity, on an affidavit of merits, He read an affidavit, also, stating that the replication in the cause, tendering an issue to the country, was served on the defendant’s attorney, on the 13th of August last, and a notice of trial for the Montgomery circuit, to be held on the first day of September, was served at the same time. The defendant not appearing, an inquest was taken by default, on the first day of .r the Circuit#
    It appeared that a similiter was added to the replication when it was served, and that the cause was noticed for trial as an inquest.
    Johnson, contra.
   Per Curiam.

We decided, at the last term, that the plaintiff, after an issue is tendered to the country, and a joinder, is not obliged to wait 20 days, before giving notice of trial, to see whether the defendant will demur or not; but he may immediately notice the cause for trial, at the peril, however, of the defendant’s putting in a demurrer, bona fide, within the 20 days. The practice of striking out the similiter, merely for delay, or to avoid a circuit, is a fraud on the IXth Rule of April term, 1796. The intention of that rule was merely to give the party an opportunity of demurring to the plea, for which purpose only ■ he may, bona fide, strike out the similiter. The plaintiff was regular; but as there is an affidavit of merits, we grant the rule, to set aside the default, on payment of all the costs.

Rule granted.  