
    Manifee v. D’Lashmutt & Starling.
    When there Is a special demurrer, and a plea of payment to the declaration, the demurrer must be disposed of, before judgment between the parties; and a judgment for the plaintiffs, when there isa plea of payment, without a replication,is erroneous.
    ERROR from Cape Girardeau.
   M’Girk, C. J.,

delivered the opinion of the Court.

This was an action of debt. To the- declaration, therewas a special demurrer, and this demurrer was not disposed of j and the defendant plead payment, and this plea was demurred to, and the demurrer sustained, and leave given to amend, which was done, by pleading another plea of payment instanter. To this plea, there appears to-be no replication ;• yet the Court give ju Igment for plaintiffs. This judgment is. erroneous, because the first demurrer to the declaiation stood'in the way j and because-the judgment as to the second plea, should have been for defendant, for want of a replication.

The judgment is reversed; and because these proceedings have been irregular,, insomuch that this Court cannot know for whom judgment should have been given, on the merits, the cause is remanded to the Circuit Court, with directions to that Court, to permit the parties to withdraw their 'pleadings from the declaration forward, and to make up new issues; and in defáult thereof, to dispose of the demurrer to the.demurrer to the declaration, and then the second plea.  