By the Court,
Savage, Ch. J.The plaintiff is not entitled to the costs of the circuit in 1829. He went to trial at his peril before the demurrer was decided, that is, at the peril of losing his verdict and the costs of (he circuit if the demurrer should happen to be decided against him. 1 Dunlap’s Pr. 521. 2 Sound. 300 a. A general rule applicable to all questions of costs is that the party in the wrong pays costs. The plaintiff was wrong to try his cause before the determina*109tian of (lie demurrer, and has incurred the penally of so doing. When (here are belli issues of law and issues of fact on the record, the proper and better course is, first to dispose of the issues of law ; a party, however, may pursue a different course at his peril.
The costs of resisting the application on the case made for anew trial, the plaintiff is entitled to recover. In this, the defendant was wrong, and lie must, pay the costs to which he unnecessarily put the plaintiff.
The charges embraced in the third objection are prospective. The defendant is not liable to pay them, the services being unnecessary previous to the time when judgment could be entered. If a tender is sufficient to pay the damages recovered and the costs accrued at (lie time of the tender, the plaintiff should stop. Nor is the defendant, liable for the fees of the witness who did not arrive at the circuit until after the trial. The witness could not recover his fees from the pi aim iff, and the latter cannot claim them from the defendant.
Re-taxation ordered.