
    The Overseers of the Poor of Pittstown against The Overseers of the Poor of Plattsburgh.
    . Where there is an issue in law, and an issue in factythe issue in law ought to be first determined ; but the plaintiff has his election which shall be first tried; and the defendant is not entitled to judgment as in case of non-suit, for not proceeding to the trial of the issue in fact, while the issue in law remains undetermined.
    MOTION for judgment as in case of nonsuit, for not, proceeding to trial, &c. There was an issue in fact, and an issue in law, both of which were joined in the last January vacation. The venue was laid in Rensselaer county. The demurrer, it was stated, went to the whole merits of the case, and had not yet been brought on to argument.
    It was contended, on the part of the plaintiff, that the motion ought not to he granted, nor ought he to be compelled to stipulate to try the issue in fact, until the issue at law was determined; and that the plaintiff had his. election. to try that issue first. (2 Tiddh Pr. 684.)
    
      Mitchill, for the plaintiff.
    
      Walworth, for the defendant.
   Per Curiam.

Whatever may have been the ancient practice on this subject, yet, according to the later authorities, where.there js an issue at law, and an issue in fact, the plaintiff may elect which he will try first; and we think it most proper that the issue in law should be first determined. The defendant cannot, therefore, compel the plaintiff to stipulate to try the issue in fact, before the other issue is disposed of; nor is he entitled to judgment of nonsuit, because the plaintiff did not bring that issue to trial at the last Rensselaer circuit. It is as much in the power of the defendant, as in that of the plaintiff, under the rules of the court, to bring the demurrer on to argument at the earliest term after joinder in demurrer. There is, therefore, no cause for the defendant to object delay on the. part of the plaintiff, in not having the demurrer argued at the last term..

Motion denied.  