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.