Majority
p. 512Shaw against Raymond, impleaded with Ford.
Headnote
Where to trespass afm an arfdone by him in virtne of his of-fice, he' pleaded- the- general' issue -and two special -pleas; td -which the-plaintiff replied, and there-were demurrers to the replications, and a verdict for the sheriff on the general issue ; held, that - the demurrers could not afterwards he argued; and the defendant had his' double costs.
Where' there'-are several - -pleas, - some: of ' which ’aré -carried.- to -an issue of: law," and stale to an issue of fact; the plaititiffmay-first argue,theidemurrerpor.itry -the.issue of fact, at his election.
Trespass de boms asportatis against both defendants, who severed in their pleas. Raymond, pleaded the general issue, andtwo special pleas/ by which he justified taking and carrying away the goods as Sheriff of St. Lawrence county,
p. 513Raymond, now moved that judgment be entered for him, with double costs. They cited 1 R. L. 345; id. 155; . 6 John. Rep, 109 ; Sir. 507; 1 Dunl. Pr. 521,2 j 2 id. 732. insisted that the application for double costs was premature. The defendant, who is acquitted should await the decision upon the demurrer. But is he entitled to double costs on the state of the plead-' ings ? Suppose the demurrer determined for him, he could have his single costs only, according to Wait v. Durand, ( 9 John. 254 .) Can he have single costs, only, on the demurrer, which goes to the whole cause of action, and yet be entitled to double costs on the issue found for him ?
tinder a plaint in replevin. To these pleas the plaintiff replied, that the plaint had been set aside for irregularity. Demurrer and joinder,.which is not yet determined. Upon this state of the pleadings, the plaintiff noticed-his cause for trial at the Iast-St. Lawrence Circuit, holden the 9th February instant, as well to try the issue as to assess contingent damages on the demurrers ; but the jury, under the direction of the Court, found a verdict for the defendant. The same jury found a-verdict against Ford, for $178 60. The demurrers were noticed for argument at the present term.
L. Hasbrouck & J Fine, for the defendant,.
A. Hackley, contra,
The plaintiff had his election to go on in the first place upon his issue of law or of fact, as. he should think proper, but he was bound to look to the consequences. Had the action been disposed of by the demurrer, costs would have been awarded accordingly. But he has chosen to have the- question settled by a jury, upon the issue of fact; and a verdict has passed for the defendant. His issue of law can, therefore, avail him nothing. We cannot avoid seeing, that upon the whole record, judgment must be for Raymond; and we would not hear an argument upon the demurrer. (Vid. 2 Archb. 252, 3, and the cases there cited.)
Motion granted.