
    *Doyle, Sheriff, &c. against Moulton and others. 
    
    After a demurrer is put in, and withdraw) it is too late to move that the defendant elect one of several pleas, and abide! by it.
    Before a default for not joining in demurrer, a party may amend the pleading demurred to ; but he cannot add a new plea.
    This was an action on a bond given to the sheriff, pursuant to the act of the 5th April, 1798, for regulating the liberties of jails. The defendant pleaded five pleas.
    1. Non est factum.
    
    2. Performance of the' condition.
    3. That the escape was by casualty, and there was a return of the prisoner before the action was brought. .
    . 4. That the penalty of the bond was for more than double the amount for which the prisoner was confined, atid so not agreeable to the act. .
    5. That the condition of the bond does hot conform, to the act."
    There was a demurrer to the second and third pleas, after which and before a default or joinder in demurrer, the fourth and fifth pleas were added. /
    
      Henry, for the plaintiff,
    withdrew the demurrer, and moved that the defendant should elect one of the three first pleas and abide by it, and that the fourth and fifth pleas should be struck out for irregularity.
    
      Woodworth, contra,
    contended that the pleas ought to stand, though apparently incompatible, and cited 2 Black. Rep. 1093; and that'under the 8th rule of April term, 1796, it was regular to add the two last pleas.
    
      
       S. O., C. C.87.
    
   Per Curiam.

The plaintiff after a demurrer, comes too late to compel the defendant to elect his plea. As to the other part of the motion, the rule referred to merely says, that before the default for not joining in demurrer is entered, the party may amend the pleading demurred to. It does not extend so far, as to allow the party to add new .pléas.

Let the fourth and fifth pleas be struck out. 
      
      
         Gra. Prac. 653, 657, et seq.
      
     