
    CONSTITUTIONAL COURT, COLUMBIA,
    APRIL, 1811.
    Hays v. Spann, Administrator of Stamper.
    After a decree entered on summary process on demurrer, the District Court on the same day, rescinded the decree, and gave the defendant leave to withdraw his plea on payment of costs, and plead is novo upon cause shown, he being an administrator, and sued as such.
    
      Noto. See 2 Hayw. 281. Marshall, C. J., allowed a plea to be added after a cause 'was called for trial. . Judgment had been obtained against defendant, as administrator, since the plea first pleaded. 2 Hayw. 67, Sawyer v. Sexton’s ad, ministrators. On motion fileno administravit, allowed to be pleaded after several terms elapsed. 2 Stra. 1075. 6 Johns. 129, after judgment by default. Judgment set aside against an executor, on payment of costs, after the lapse of a term, ignorance of attorney, to prevent his being made liable de bonis propriis.
    Summary process, in District Court of Sumter, before Brevard, J. The defendant had pleaded a special plene admitiistravit, to which defendant had demurred, and the court decided against the defendant, upon which a minute thereof was entered by the clerk in the minutes of the proceedings of court. But upon the application of the defendant, very soon after the said decision and entry, the decree of the court was altered, and the defendant had leave to withdraw his plea, on payment of costs, and plead de novo ; it appearing that he had not pleaded amiss at first, for delay, and that he had a just defence.
    This proceeding was objected to, by Levy, for the plaintiff.
    The motion in this court was to set aside the proceedings of the District Court, after giving judgment for the plaintiff on demurrer, and to affirm that judgment.
    Submitted without argument.
   Nott, J.,

delivered the opinion of the whole court. That the District Court had not erred, but had exercised a legal discretion. The merits of the case were not involved in the determination of the demurrer. It was a question of form. The defendant was presumed to have merits, and the court was. authorized to give him leave to defend himself on the merits, upon payment of the costs occasioned by his faulty plea.

Motion rejected.  