
    Falls against Stickney.
    NEW-YORK,
    Nov. 1808.
    where a plea is put in, which the plaintiff considera as frivolous, or a nullity, he may either enter a wantof a plea^ or demur, but to^the* court JUU£TUCUb
    GRIFFEN, for the plaintiff,
    moved for judgment by default, in this cause, on the ground, that the plea which , ,, . had been put in, was a nullity.
    
      Foot, contra.
   Per Curiam.

The plea is clearly bad, but it may have been put in,hona jide. If a plea is bad or frivolous, the plaintiff ought either to demur to it, or treat it as a nullity, and enter a default, without any application to the court, Had the plaintiff demurred, the defendant might have' obtained leave to amend. The present motion was unnecessary.

Rule refused.  