Waties, J., delivered the opinion of all the court. The leave to plead was granted on condition of pleading instanter. From the nature of such cases as the present, and from the statement of facts in this particular case, it is evident the plaintiff’s counsel had due notice of the plea in question, to which he might have replied immediately, if he was prepared to do so ; or if he wished further time to answer, it would have been granted upon his application. He was bound to take notice' of the plea put in, because, by the terms of leave to plead, it was necessary to plead instantly.
If not pleaded instantly, that would have been a good objection. But this plea was in time, and there was no good ground for setting it aside. Motion granted.