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 The defendant had virtually withdrawn the demurrer, and gone to an issue of fact; the only one in the case.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the report of that case, upon the apparent sanction given to the hearing of an issue in law on appeal after it had been withdrawn from the record; when he admitted the irregularity of the practice, and said he had not turned his attention to the point while considering the case, but had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.