¶1Even under the very strict practice in the English courts, under the old system, this was allowed. See Robinson v. Rayley, Burr. 316; and in Collins, Sen., v. Collins, Jun., before Lord Mansfield, Burr. 820, 823, 827, the plaintiff demurred, and after argument and opinion delivered he was allowed to withdraw the demurrer and plead.
¶2And in this country the practice has always been liberal. There is an obvious advantage in having a question of law settled in the beginning of proceedings, as the result may be to save the time of the court and parties, and to save to the State the expense of a jury trial. And with the power which the court has to refuse leave to withdraw, when the demurrer has been obviously filed for delay, and to impose conditions on granting leave, there can be little danger from the practice.
¶3And we can see no reason why this discretion should not be used in a case where the State is a party as well as between individuals.
¶4Motion granted.