In the case of Scammon v. McKey, ante, we have expressed the opinion that a party may file a plea if he does it in proper time or before he is in any default, without an affidavit of merits; and that the court has no authority to require an affidavit of merits, except where the party is in default, and the court has a right to impose conditions upon granting to the defendant, the indulgence to file a plea, which in strictness of law he should have filed earlier. In this case, the pleas were not filed at the commencement of the term, nor until some days after the general rule requiring affidavits of merits. At the time that rule was entered the court had a right to have entered the default of the defendant, or it had the right to allow him to plead on condition that he should file an affidavit of merits. As to this case, then, the rule was entered in the exercise of a legitimate power possessed by the court, although its terms are broad enough to embrace cases as to which the court has no right to impose such condition. The rule must be a nullity as to such cases, while it may have full force in cases where the court has a right to impose conditions, as was the case here. Besides, it does not clearly appear that the plea was stricken from the files for non-compliance with this rule. The order does not say so, and possibly there may have been a special rule entered in this cause which was not complied with. The judgment must be affirmed.
Judgment affirmed.