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.