
    James N. Harper vs. Jerome N. Bondurant.
    It is error, where four pleas are filed in a case, and issues joined to the country on two of them, and demurrer filed to the other two, to proceed to trial
    and judgment on the issues to the country, without any disposal of the demurrers.
    In error from the Yalabusha circuit court; Hon. Benjamin F. Caruthers, judge.
    Jerome W. Bondurant sued James N. Harper in an action of debt on a bill single, made by the defendant and James Foster. The defendant plead, 1. Non estfactum; 2. That the defendant was a surety for Foster, and the plaintiff had refused tp sue Foster until he had become insolvent, and gone beyond the jurisdiction of the court. 3. That the bond sued on, was a subsisting debt of Foster to Bondurant, to which the defendant afterwards affixed his name without consideration, to him or Foster. 4. That the bond was signed, sealed and delivered by Foster to the plaintiff, without the knowledge, privity or consent of the defendant who was a surety. On the first and third pleas an issue was joined to the country; and to the third and fourth a demurrer was filed; which demurrer, so far as the record shows, was undisposed of. A jury was empanelled, who found for the plaintiff; and the defendant sued out this writ of error.
    Waul, for plaintiff in error.
    In examining the record, I find there is no judgment of the court upon the demurrer; this was error.
    
      Davidson, for defendant in error.
   Mr. Justice Thacher

delivered the opinion of the court.

In this action, the record exhibits that a demurrer was filed to the third and fourth pleas of the defendant below, and an issue joined upon the first and second; it further exhibits a trial, verdict and judgment in the case without any disposal of the demurrer to the third and fourth pleas. This was error. The argument of counsel proceeds upon the supposition that the demurrer was sustained by the court below, but there is no evidence in the record, of such an interlocutory judgment having been made, and therefore the sufficiency of the causes assigned in the demurrer, is not properly a question pending in this court.

The judgment must be reversed, and the cause remanded for further proceedings.  