¶1The omission of filing the plea, not being known when issue was joined, or the cause noticed, cannot be cured by those acts. The principle therefore of Shephard ads. Case, applies. Though there is a strong affidavit of merits, we can relieve only on terms; those must be payment of costs, and filing the plea instanter.
3 Cai. Cas. 107
Giles v. Caines
Decided May 15, 1805
New York Supreme Court · decided 1805-05-15
AFTER noticing for trial, it was discovered that the defendant’s attorney had not filed the plea, a copy of which he had delivered, the plaintiff therefore entered a default as for want of a plea- To set aside this, the defendant noticed for the first day of term, but having obtained no order to stay proceedings, and not bringing on the motion upon that day, the plaintiff duly executed a writ of inquiry.
Decided 1805-05-15