
    
      Thomas et. al. vs. The President and Directors of the Bank of the Commonwealth.
    
    Petition & Summons.
    -Error (o (he Montgomery Circuit; Silas W. Bobbins,.Judge.
    
      Pleading. Practice. Default.
    
    April 23.
    Error to rentier judgment against def’t. for failing to plead, demurrer having been -ustained to some of hispleas.when there still remains an issue, tho’ inaial.
   Chief Justice Bobehtson,

delivered the opinion of the court.

Tub plaintiffs in error filed a plea of payment to a petition and summons brought against them by the defendants in error.

The plea tendered an issue to the country, which was joined by a similiter. Other pleas were filed, to which demurrers were sustained.

It seems from the record, which is scarcely intelligible, that, although the plaintiffs in error, were in court, judgment was rendered against them for failing to plead after the court had sustained demurrers, to two of their pleas.

Although the issue was informal, it was not immaterial ; and this court is not allowed to presume that there was a default by the plaintiffs in error. As it does not appear that they abandoned or had waived the plea of payment, or that they were not ready and willing to try the issue, it seems to this court that the circuit court erred in rendering a judgment without a trial of the issue. For this apparent error alone (for their is no other,) the judgment must be reversed, and the reminded for further proceedings.

Record condemned. ■

Monroe, for plaintiffs; Crittenden, far defendants.

The record is condemned for. confusion, and for transpositions.  