¶1There can be no doubt, in my mind, that the plaintiff was in error in entering judgment for costs upon the demurrer, while the issues of fact in the cause were undetermined.
¶2The practice was settled under our former system and there is nothing in the Code that changes it in this respect (Williams ads. Wright, 1 Wend. R. 277; 6 Cow. R. 71; Osborn vs. Lawrence, 9 Wend. R. 445; The People vs. Feeter, 12 Wend. R. 480; 2 Arch. Pr. 286; 1 Burril's Pr. 252; 5 East R. 261). These cases seem to settle the doctrine that where there is an issue of law and an issue of fact joined in a cause, no judgment for costs can be entered in favor of the party who prevails upon the issue of law until the issue of fact is disposed of. This judgment, therefore, must be set aside as irregularly entered, and if the plaintiff succeeds upon the issues of fact, then he will be entitled to insert the costs of the demurrer in the record; but if/ on the contrary, the defendant shall succeed upon the issues of fact in the case, then the plaintiff will not be entitled to have his costs upon the demurrer. This is a new question of practice under the Code, and I think it is not a proper case, therefore, to impose costs, especially as this is the first time the question has been presented to me.
¶3The clerk of Madison county will enter an order setting aside the judgment in this cause, but without costs.