
    James McDugald et al. vs. The Mississippi Union Bank.
    Upon a demurrer to a plea puis darrein continuance being sustained, the judgment of the court, under the statute (H. & H. 615, § 8) 'should be respondeat ouster, and not quod recuperet.
    
    In error, from the circuit court of Jasper county ; Hon. Yan Tromp Crawford, judge.
    The Mississippi Union Bank sued James McDugald and two others, upon a note payable to the bank. The defendants plead first, non assumpsit; they accompanied this plea with a suggestion that the bank had been, by the governor of the state, proclaimed to have forfeited its charter by the non payment of its notes in specie on presentation; and had also assigned, by a deed of assignment, all its effects, and had thus divested itself of its existence as a corporation. This suggestion, with the proclamation of the governor referred to in it, was spread upon the record.
    At a subsequent term of the court, the defendants were allowed to plead two pleas, puis darrein continuance ; first, of set-off since the commencement of the action ; second, that by the deed of assignment the bank had transferred the note in suit to third persons, and had thus assigned all right which they had in the note against the defendants. The attorneys of the bank demurred to the pleas puis darrein continuance. The court overruled the demurrer, and rendered a judgment final against the defendants, upon the note sued on, for principal and interest. During the progress of the trial, under the leave to file additional pleas, the defendants filed a plea of usury, which was in the record when the final judgment was pronounced.
    The defendants below prosecute this writ of error.
    
      Hughes, for plaintiffs in error.
    The judgment of the court should have been respondeas ous
      
      ter. The other pleas in the case undisposed of, as non assumpsit., were a good bar to the action. Quod recuperet was clearly not the proper judgment; for this error, I think the judgment must be reversed.
   Mr. Justice Thacjher

delivered the opinion of the court.

Several pleas were filed by the defendants below in this case. To a plea puis darrein continuance, there was filed a demurrer, which was sustained by the court below, but judgment quod recuperet ordered. This was error, since the statute, H. & H. 616, § 8, requires a judgment of respondeat ouster, with a requirement upon defendants to limit their pleadings to the merits of the cause.

Judgment reversed, with directions that the demurrer be sustained, and judgment of respondeat ouster be awarded.  