
    Jones vs. Thompson.
    The defendant in a justice’s court demurred to the declaration, and the demurrer was overruled. He then amended by pleading the general issue; and, after verdict and judgment against him, appealed to the common pleas. Held, that the latter court had no right to pass upon the issue of law joined before the justice, but was bound to try the cause upon 'its merits.
    Otherwise, had the defendant appealed at once, after the decision against him on the demurrer, without joining issue upon the merits.
    The rule is the same whether the cause be carried to the common pleas by certiorari or appeal.
    The case of Wickware v. Bryan, (11 Wend. 585,) commented on, and the reporter’s abstract corrected.
    On error from the Dutchess common pleas. Jones sued Thompson before a justice of the peace, and on the joining of issue the defendant demurred to the declaration for a misjoinder of counts, and the plaintiff joined in demurrer. The justice overruled the demurrer, and the defendant thereupon pleaded the general issue. The cause was afterwards tried, "and a verdict and judgment rendered in favor of the plaintiff for fifty dollars, from which the defendant appealed to the common pleas. When the cause was called on for trial in the latter court, the defendant insisted that the issue of law joined before the justice should be argued, and the court decided that they would hear the argument, to which the plaintiff’s counsel excepted. The issue of law was then argued, and the court held that the defendant was entitled to judgment upon the demurrer. Judgment was rendered accordingly, without trying the issue of fact, and the plaintiff thereupon brought error.
    
      E. M. Swift, for the plaintiff in error.
    
      W. Eno, for the defendant in error.
   By the Court, Nelson, Ch. J.

The common pleas clearly erred. There was no issue of law before them. The defendant had virtually withdrawn the demurrer, and gone to an issue of fact; the only one in the case. By amending and pleading the general issue, he admitted the correctness of the judgment upon the demurrer. Had he intended to rely upon any error in that judgment, he should not have amended, but left the issue upon the record, and taken his appeal at once. Who ever heard of an issue of law upon the record, in this court, after the party demurring has had leave to amend, and has availed himself of the privilege by joining an issue of fact 1

The case of Wickware v. Bryan, (11 Wend. 545,) was supposed by the reporter to have sanctioned the practice pursued by the common pleas in this case; but it did not decide the point, as the court took no notice of the mode in which the question came up for review. I well recollect conversing with the late chief justice, after the report of that case, upon the apparent sanction given to the hearing of an issue in law on appeal after it had been withdrawn from the record; when he admitted the irregularity of the practice, and said he had not turned his attention to the point while considering the case, but had passed directly on to an examination of the merits.

The court has since repeatedly refused to entertain a question upon the demurrer, after the party has amended by joining an issue of fact, as well where the case came before the common pleas on certiorari, as on appeal • though I do not find that the point has got into the books.

The court below erred, and the judgment must be reversed.

Ordered accordingly.  