Majority
p. 91Dole, Sheriff of Rensselaer, v. Moulton and others.
Headnote
THIS was an action upon a bond given to the she - riff, conformably to the act passed April 5th, 1798, •entitled, “ An act regulating the liberties of gaols.5’The defendants pleaded five pleas;
1. Non est factum.
2. Performance of the condition.
3. That the escape was by casualty, and that there was a return before suit brought.
4. That the penalty is for more than double the amount of the sum for which the prisoner was confined, and so not agreeable to the statute.
5. That the condition of the bond is not conforma. Me to the statute.
p. 92withdrewhis demurrer, and now moved that the defendant elect one of the three first pleas and abide by it, for he insisted that the pleas were incompatible. And he moved, at the same time, that the two last pleas be struck out for irregularity. He^contended that pleas have been allpwed to stand together, though seemingly incompatible ; and cited 2 Blackst. Reports, 1093.— And in answer to the last motion he insisted that it was regular to file the two last pleas at the time he did, under the provision contained in the 8th section of the rules of April term, 1796,
But the two last pleas were added after demurrer to the second and third pleas, and before default or joinder.
Henry for the plaintiff
Woodworth, contra.
The rule referred to by the defend-' ant’s counsel, that “ where there shall be a demur- “ rer to a declaration, or to any other pleading, not being a plea in abatement, the party against whom “ the demurrer shall be taken, may, at any time be- “ fore the default for not joining in demurrer shall be “ entered, amend the pleading demurred to” will never extend to permit the party to add new pleas : those pleas must therefore be struck out.
As to the first motion, the plaintiff, after demurrer, comes too late to drive the defendant to an election.
p. 93
Let the plaintiff take only the effect of his motion in respect to the two last pleas.