Shultys v. Owens , 14 Johns. 345 ( 1817 )

Per Curiam.

We decided, at the last term, that the plaintiff, after an issue is tendered to the country, and a joinder, is not obliged to wait 20 days, before giving notice of trial, to see whether the defendant will demur or not; but he may immediately notice the cause for trial, at the peril, however, of the defendant’s putting in a demurrer, bona fide, within the 20 days. The practice of striking out the similiter, merely for delay, or to avoid a circuit, is a fraud on the IXth Rule of April term, 1796. The intention of that rule was merely to give the party an opportunity of demurring to the plea, for which purpose only ■ he may, bona fide, strike out the similiter. The plaintiff was regular; but as there is an affidavit of merits, we grant the rule, to set aside the default, on payment of all the costs.

Rule granted.