Ellis v. Hickman , 1 Minor 394 ( 1825 )

Judge Gayle

delivered the opinion of the Court.

It is insisted by the defendant’s Counsel, tliat by reference ■to the date of the affidavit accompanying the plea, it appears that the plea was not filed until trial term, and that it ought not to have been received then. The declaration is entitled of the appearance term, and there is nothing else in the Record shewing at what time it was filed.- The plea is entitled of the same term. It has been a rule of practice universally acquiesced in, that a plea filed before a default is claimed, is in time ; and that under such circumstances no objection can be taken as to the time of filing. We see no reason for departing from this rule, or for a distinction in this respect between pleas in abatement and other pleas ; and are unanimously of opinion that the judgment must be reversed. ,

Hutchinson, for plaintiff. Clay, for defendant in Error.