Vail v. People

1 Wend. 38

Opinion

By the Court,

Savage, C. J.

The relators had a right to demur to the return made to the alternative mandamus, but they could not both demur and plead. The statute regulating proceedings on writs of mandamus, allows the relator to plead to, or traverse all or any of the material facts contained in the return. A demurrer is a plea within the meaning of the statute, and has so been holden. (16 Johns. R. 61, 65.) The whole return is to be considered as entirety, like a count in a declaration. If the facts set forth cannot be traversed or denied, the relator may demur, but he cannot dissect the return into as many parts as he sees fit, plead to some portions, and demur to the residue. The relators had no right to enter the rule requiring both a joinder and replication ; consequently, the default entered in pursuance thereof was irregular.

Motion granted, with costs.