Majority
p. 87JANUARY TERM, 1800. Dole, sheriff of Rensselaer, vs. Moulton and others.
Headnote
THIS was an aftion upon a bond given to the fheriff, conformably to the Aft palled April gth, 1798, entitled, “ An Aft regulating the iiber- “ ties of gaols/’The defendants pleaded five pleas,
1. Non ejl fadtwm.
2,Performance of the condition.
3.That the efcape was by cafo al ty, and that there was a return before fuit brought.
4.That the penalty is for more than double the
p. 88
amount of the fum for which the prifoner was confined, and fo not agreeable to the ftatute.
5. That the condition of the bond is not conformable to the ftatute.
But the two laft pleas were added after demurrer to the fecond and third pleas, and before default or joinder.
Henry for plaintiff withdrew his demurrer, and now moved that the defendant ele£t one of the three firft pleas and abide by it, for he infilled that the pleas were incompatible. And he moved at the fame time that the two laft pleas be ftruck out for irregularity.
Woodworth contra. He contended that pleas have been allowed to Hand together, though feem-ingly incompatible; and cited 2 Blackft. Reports, 1093. And in anfwer to the laft motion he infilled that it was regular to file the two laft pleas at the time he did, under the provi lion contained in the 8th feftion of the Rules of April Term, 1796.
The Rule referred to by the defendant’s counfel, that “ Where there íhall be a “ demurrer to a declaration, or to any other plead- “ ing, not being a plea in abatement, the party “ againft whom the demurrer íhall be taken, may “ at any time before the default for not joining in “ demurrer íhall be entered, amend the pleading de~ “ murred to,” will never extend to permit the party to add new pleas: thofe pleas muft therefore be ftruck out.
p. 89
As to the firft motion, the plaintiff, after demurrer, comes too late to drive the defendant to an eleclidn.
Let the plaintiff take only the effedfc of his motion in refpe£t to the two laft pleas.