
    John Daugherty, plaintiff in error, vs. Bridgman & Partridge, defendants in error.
    
      Error to Washington.
    
    Assenting to a trial upon the pleas, amounts to a waiver of a demurrer on file.
    The record should show that the demurrer was called up for the action of the court before the omission to dispose of it can be assigned as error.
    
      This was an action of assumpsit brought by Arthur Bridgman and George Partridge, partners, &c., against John Daugherty, upon two promissory notes. Judgment for the plaintiffs November term 1842, for $230,19.
    The defendant below is the plaintiff in error.
    The facts in the record, and the errors complained of, appear in the Opinion of the court.
    Hall, for plaintiff in error.
    Rorek, for defendants in error.
   Per Curiam,

Mason, Chief Justice.

We find no regular assignment of errors in this case, but from the brief argument of the plaintiff in error, it appears that the only error complained of, is, that the court should have decided the issue upon the demurrer before they compelled the defendant below to go to trial upon the pleas. Had such been the' fact, it would have been error. But we cannot find that the record shows any such thing to have been done. We cannot find that the defendant ever called up his second demurrer. Nor was there any trial upon the pleas; but a judgment was entered by agreement. Even had there been a trial upon the pleas without noticing the demurrer, the defendant could not now complain, unless he objected at the time. Assenting to a trial upon the pleas would have been a waiver of the demurrer.

Judgment affirmed.  