
    Peter Wikoff et al. against Elliston Perot et al.
    Defendant cannot -withdraw a plea at the time of trial, to give him the benefit of conclusion to the jury.
    Messrs. Bradford and Ingersol pro quer.
    
    Messrs. Eewis and Wilcocks pro def.
    
    Followed in 3 Binn., 591, where it was held not tobe error in the Common Pleas to refuse leave to the defendant in an action of debt, immediately before the trial of the cause, to strike out the plea of non est factum, and to rely solely upon the plea of payment.
   Case. Defendant’s counsel moved to withdraw their plea of non-assumpsit, and rely on their plea of payment alone, (apparently to have the benefit of conclusion to the jury) but it was opposed as contrary to all practice. The court thought that the application was not made in time. They would not decide, that there was no case wherein a party might not be permitted to withdraw a plea at the bar; but this clearly cannot be done in the present instance.

Cited in i R., 347, in support of the decision that a plaintiff will not he permitted to discontinue, where it will give him an advantage, or tend to vex and oppress the defendant.

By the Act of March 21, 1806, a defendant may alter his plea or defence on or before the trial of the caijse.  