
    John G. Johnson v. John O’Neal.
    1. Peacttce and Pleading. Demurrer. Code, \ 2931. A demurrer, under $ 2934 of the Code cannot be noticed unless the causes of demurrer are set out in it. If a demurrer is filed and the action of the Court not demanded on it, its sufficiency will he taken for granted.
    2. Same. Same. Abandonment. Presumption. If the defendant files several pleas to a declaration, to some of -which the plaintiff demurs, and takes isssue on the rest; and the defendant goes to trial upon those pleas upon which issue was taken, without demanding the action of the Court upon the others, it will bo presumed that he has abandoned them as defences.
    PROM BEDFORD.
    This cause was tried at the December Term, 1858, before Judge Dayidson.
    
      B. M. Tillman, for the plaintiff in error.
    Wlsrner and Neil, for the defendant in error.
   Caruthers, J.,

delivered the opinion of the Court.

This is an action upon two bonds fox $2933.82. The pleas are, nil debet, payment, and a special plea in these words: ‘•The defendant pleads failure of consideration in this, that said bills single were given by defendant for a certain tract or parcel of land sold and conveyed by deed, by plaintiff to defendant, and defendant avers that for a portion of said land, plaintiff had and now lias no title, and could not make a title to defendant, and that he is ready to verify/’

To this, as well as the plea of nil debet, there is entered the words, “demurrer” and “joinder,” signed by the respective counsel. There is no action of the court upon cithers and the jury find upon the plea of “ payment,” upon which issue was joined in favor of the plaintiff.

If the demurrer could be noticed at all, as it cannot, because the ground of it is not set out, (Code, 2934.) it would be taken as admitted to be sufficient, because the action of the court was not demanded, and issue required, unless it appeared by bill of exception or otherwise that the jury had passed upon them, in which case the demurrer would be presumed to have been waived.

The defendant having gone to trial upon his plea of payment and issue thereon, and no notice having been taken of or proof offered under his other pleas, we must presume that he abandoned them as defences to the action. In this view the sufficiency of the pleas as defences need not be examined.

No merits are shown in the defence by bill of exceptions, or any erroneous action of the court, and a sufficient cause of action is made out in the declaration, which the jury has sustained, upon the only issue submitted to them.

We cannot, therefore, reverse ; but the judgment must be affirmed.  