
    Austin W. Stocking v. Joel B. Burnett.
    An issue in fact and 'in law can not be taken at the 3ame time to the same count or plea.
    This is an information in the nature of a,-quo warranto from the county of Portage.
    It is filed by the relator, under the acts of March 17, 1838, and March 18,1839, by which it is provided, “ that when any person shall usurp, intrude into, or unlawfully exercise any public office, civil or military, to which any other person shall claim to be entitled, the person so claiming may file an information in the natun? of a quo warranto,” etc.
    The relator states that the.defendant has intruded himself into 188] the office of brigadier-general of the 1st brigade, 20th *division of the Ohio militia; an office of great trust and pre-eminence, and continues to exercise the same, without right or legal warrant, and that he, the relator, is entitled to hold said office, etc.
    The defendant has plead specially in bar, that he was legally elected and commissioned to said office, which election, and commission are his right and warrant to hold and discharge the duties of said office. The relator replied, taking issue upon the fact of the election set up in the plea, and at the same time demurred, generally,to the whole plea. The case wassubmitted without argument.
    Tilden, for the relator.
    Bierce, for the defendant.
   Wood, J.

This case is reserved here for decision, to settle a question of pleading. The issue in law and fact each covers the whole plea, and were filed at the same time. A practice of this kind has prevailed, to some extent, in this state, but we think it has, by no means, been general, and ought not to be sustained. It probably originated in a misconstruction of the practice act, “ that where there are issues in law and issues in fact, the issue in law shall be determined before the issue in fact shall be tried.” 3 Chase’s L. 1684, sec. 1. The issues here mentioned are not to the same, but different counts, or pleas. It seems to us to sanction the practice adopted in this case, would lead to inconvenience and useless expense, burdensome to the parties litigant, while no benefit would result from its adoption. For if an issue in law and fact may be made up at the same time, to the same count or plea, it follows thatthe parties must be prepared with their witnesses to prove the issue of fact, when the disposition of the issue of law might put an end to the whole case. The costs of making up the issue of fact, filing and recording, ought not to be incurred, nor the record incumbered, until the determination of the demurrer makes it nec139] essary. In this ease, we see no reason why the plea is not % complete answer to the information, and the demurrer is overruled, with costs, and the case remanded for trial upon the issue in fact.

Demurrer overruled.  