
    Joseph Heyfron et al. vs. The Mississippi Union Bank.
    
    Where to an action of assumpsit, in which there is more than one count, and the defendants plead non assumpsit to the whole declaration, and special pleas to the first count, and the plaintiff demurs to the special pleas, it is error for the court, on sustaining the demurrer, to enter a judgment final against the defendants, without a trial of the issue.
    Where a demurrer to a plea is sustained, the judgment of the court should be respondeat ouster, and not quod recuperet.
    
    It seems a plea puis darrein continuance, in this state, is not a waiver of other pleas previously filed.
    In error from the Jasper circuit court; Hon. Yan Tromp Crawford, judge.
    The Mississippi Union Bank sued Joseph Heyfron, Asa Hartfield, Seymour White, and Elias Brown, in assumpsit upon a promissory note. The declaration, besides the count on the note, contained the common counts. The process was served on all the defendants but White; the other three defendants plead: I. Non assumpsit; 2. To first count in the declaration, a plea of usury; 3. At a subsequent term, by leave, they plead nul tiel corporation ; 4. A further plea of usury; and 5. A plea puis darrein continuance, that the bank had assigned the note sued on, since the institution of suit. To the last plea the plaintiff demurred, and the court sustained the demurrer; and thereupon gave judgment by default for the plaintiff against the defendants, for the sum of $603, the note being for ,$500 ; and they sued out this writ of error.
    
      Heyfron and Dozier, for plaintiffs in error.
    1. The demurrer to the plea puis darrein continuance admits all the facts therein stated. There being no special cause of demurrer stated; matter of form need not be regarded. The plea avers that by virtue of the deed of assignment, all the right and title of the bank to the causes of action in the declaration mentioned, were thereby vested in the assignees. In the case of Oldham v. Ledbetter, 1 Howard, 46, it is decided that all notes, by the common law, are transferable by mere delivery, and that it operates a complete divestment of all right to their'contents, and of all authority to control their appropriation on the part of the payee. It would appear, therefore, that by the deed of assignment, all right to the causes of action in the declaration mentioned, were divested out of the bank.
    It is very difficult to conceive how the bank, after such an assignment, could recover in a court of law. 2 How. 646.
    2. It may be objected that the plea is not supported by affidavit. The English practice requiring an affidavit of the truth of such pleas, is founded on a rule of the courts of that country, not in force here. And even there' and in New York, such a defect is merely an irregularity, which is waived by the demurrer. 10 Johns. R.
    3. The court below considered the last plea as a waiver of all the others, and in giving judgment, acted as if they were not on the record. The position is correct by the rules of the common law, and also true under the statute of Anne, permitting double pleas by leave of the court. The courts, where that statute is in force, will regard such a plea a waiver, because, strictly speaking, the admission of a second or more pleas in bar, is, by the statute, left to their discretion, in the exercise of which, to prevent delay, they consider pleas of that character, as at common law, a waiver of the former plea. But, under our statute, I think the courts here have no such discretion. By the statute of 1838, H. & H. 597, it is made lawful for the defendant to plead as many pleas, in bar of the action, as he shall choose. The words “ many as he shall choose,” embrace all pleas of every character that are in bar, any one of which might have been pleaded to the same class of actions, by the rules of the common law. The meaning of the statute evidently is, that the defendant may plead a plea puis darrein continuance in bar, together with other pleas, it being, by the common law, “ q plea in bar of the action.”
    
      4. Admitting the plea puis darrein continuance to have been bad, and that it was a waiver of former pleas, the judgment on the demurrer should have been a respondeat ouster.
    
    1st. Because it was the first demurrer determined by the court on joinder. Brown v. Smith, 5 Howard, 395.
    2d. If the plea waived all former pleas, it was a substitute for the first plea, the general issue now to that plea, (no demurrer reached,) the judgment should have been the same as if the first plea (the general issue) had been defective, which undoubtedly would have been a respondeat ouster.
    
    The plea puis darrein continuance, was pleaded under and by virtue of the common law right to interpose such pleas, and if defective on demurrer, the judgment should be to answer over. It would be strange indeed, if the courts held such a plea a waiver of all other pleas, and on demurrer to it, pronounced a judgment of quod recuperit.
    
   PER Ctjeiam.

The plaintiffs in error were sued on a promissory note. Process was not served on one, and the other three pleaded non assumpsit and two special pleas. The plaintiff took issue on the first plea, but demurred to the others, which were only pleaded to the first count. On argument of the demurrer, it was sustained, and final judgment rendered against all of the defendants. This was error. There was an issue undisposed of, on which the defendants were entitled to a trial. But the judgment on the demurrer was wrong; it should have been respondeat ouster instead of quod recuperit.

Judgment reversed, and cause remanded.  