
    CONSTITUTIONAL COURT,
    COLUMBIA,
    APRIL, 1805.
    Haig v. Executor of Smith.
    Defendant moved, after issue joined, but before the cause was called for trial) for leave to withdraw a former plea of ne unques executor, and to plead plane aiministramt, which the district court ordered acfcordingly. All the judges agreed, that under the particular circumstances of this casé, and as the plaintiff had suffered no delay, to allow the first plea-to be withdrawn.
    Motion to reverse an order of court in Barnwell district; per "Waties, J. The defendant had pleaded to an action of assump; sit, for money paid for his testator, that he never was executor of the said J. C. Smith; and to which plea the plaintiff replied, that as executor of the said J. C. Smith, he, the defendant, administered certain goods'of the deceased, and prayed that the same might he inquired of by the country; upon which issue was joined. When the cause was called' for trial, the defendant moved for leave to withdraw the said plea of ne unques executor, and to plead plane administravit; which the court ordered, accordingly, contrary to the wish of the plaintiff, who was pressing on the trial.
    In support of the motion in this court, Starke, for the plaintiff, insisted that the defendant was too late in his application to plead pilene administravit, which would delay the plaintiff; and that having pleaded a plea which he knew was not true, be was not intitled to indulgence.
    H. D. Ward, contra, for the defendant.
    The defendant, being an executor, has a claim to indulgence. He was appointed executor, and qualified in Georgia; and he was under an impression, that this would not be sufficient to make him answerable, as executor, in this State; but understanding it would, he was advised to relinquish that defence, and plead as executor. It was not a wilful, false plea,, which was first pleaded, of a matter of fact, but was occasioned by a doubt as to the question of law, whether under the circumstances of the case, the defendant could be legally considered as executor of J. C. Smith in this State, where he had never acted as such. The court will often allow a plea to be withdrawn, and another substituted, where there is no intention to delay the adverse party. 2 Wils. 204.
   Curia.

Grimke, Bax, Brevard, and Welds, Justices,

took time to consider.

27th November, 1805. The court, all the judges present, agreed to refuse the motion, under the particular circumstances of this case, as Waties, J. stated that the motion was considered as made, to plead pilene administravit, before the cause was called on for trial; and, that there did not appear to have been any unreasonable delay suffered by the plaintiff; as the particular circumstances of the defendant’s situation were known to him; and the object of the defendant’s motion in the district court, was not to delay tire plaintiff.

Note. See Barnes, 260. Prac. Reg. 236. Cruse v. Williams. A regular judgment was set aside on payment of costs, plaintiff not having been delayed of a trial, and pleading plane administravit; which, defendant being an administrator, was deemed as the general issue.  