
    William M. Gwin vs. Henry D. Mandeville, use of William D. Gillespie.
    Under the statute of 1837, requiring the holder of an indorsed bill of exchange or promissory note to sue all the parties thereto, living and resident in this state, in a joint action, the acceptor of a bill, though not enumerated in the first section of the statute, must be joined with the other parties; the subsequent sections and the whole statute taken together, show that acceptors are embraced in its requirements.
    It is not permitted to plead and demur to an entire declaration; if therefore a party defendant both plead and demur to the same declaration, it seems that the plaintiff may disregard both plea and demurrer and take a judgment.
    Where a party defendant to an action of assumpsit demurred and plead to the whole declaration, and the plaintiff disregarding the pleas, joined issue on demurrer; and the court thereupon gave judgment for the plaintiff, which was final, and there was no farther disposition of the pleas, held, not to have been error; it was in the power of the party plaintiff in such case to elect to take the issue of law, or for the court to have passed upon it.
    Where a party has demurred to a declaration, the subsequent or simultaneous pleading thereto does not waive the demurrer; an issue of fact not being a plea of higher dignity than an issue in law.
    In error from the circuit court of Hinds county; Hon. John H. Rollins, judge.
    Henry D. Mandeville for the use of William E. Gillespie, sued William W. Gwin, G. S. Cook, W. E. Harrold, and C. W. Clifton, in assumpsit by writ returnable to the May term, 1839, of the circuit court upon a bill of exchange drawn by Cook upon Gwin, and accepted by him; and by Samuel Gwin, Harrold, and Clifton indorsed. The writ was executed in March, 1839, upon Cook and Gwin. The other defendants were not found. At the December term, 1840, a demurrer was filed for Gwin. On the 28th day of December, 1840, this demurrer was sustained ; afterwards, during the same term, on the 5th day of January, 1841, this order was set aside, the demurrer was overruled, and a judgment by nil dicit taken against Gwin, and a discontinuance entered as to Cook, Harrold and Clifton.
    In the record, immediately after the demurrer, follow several pleas by Cook and Gwin, which are nowhere in the record disposed of, nor is it stated at what time the pleas were filed. Gwin sued out this writ of error.
    
      William Yerger, for plaintiff in error.
    1. The court erred in overruling Gwin’s demurrer. The act of May, 1837, authorizing the institution of joint actions in the cases therein cited does not authorize a joint action against the drawers, indorsers, and acceptors of bills of exchange. The words of the act are, that “in all actions founded upon promissory notes and bills of exchange, the plaintiff shall be compelled to sue the drawers and indorsers, living and resident in this state in a joint action.” How. & Hutch. 595.
    The act does not name acceptors, and although the court may suppose that the legislature would have embraced them, if it had thought of it; yet the rule of construing statutes is inflexible, and all statutes innovating upon the common law are to be strictly construed, and where there is a casus omissus in a statute, it is not competent for the court to supply it. Dwarris on Stat. 695, 712.
    2. The judgment will be reversed, because on overruling the demurrer, judgment by default ought not to have been taken, as there were in the record several valid and substantial pleas undisposed of. This court has repeatedly ruled, that it is error to render judgment by default where there is a plea undisposed of. Bozman v. Brown, 6 How. 349.
    In this case it does not appear when these pleas were filed. But that is immaterial. If filed before the demurrer, they were well filed ; and for that reason the demurrer ought to have been overruled, and the pleas answered. If filed after the demurrer, but before it was tried, they overruled the demurrer, and should have been replied to, upon the well known rule of pleading, that a defendant by pleading in bar waives his demurrer; and if plead after the demurrer was overruled, they should have been disposed of in some way before judgment by default was rendered.
    3. If the defendant denies that the plaintiff in point of law is entitled to relief, he demurs. If he does not demur, he must plead or answer by matters of fact. Stephens on Plead. 44, 45. He cannot plead and demur to the same matter, but must make his election. Ib. 278. If then a demurrer be filed, and subsequently thereto a plea be filed, there is clearly an election to take the plea. And so in chancery, the rule is, that a plea or answer overrules the demurrer. That the filing of a plea after a demurrer is a waiver of the demurrer,' is proved by the analogies in the practice of filing pleas. And it will be seen, that if a party files a plea to the jurisdiction of the court, and subsequently pleads in bar, he is taken to waive or renounce the plea first pleaded. Steph. on Plead. 429, 430.
    
      Lea and Lea, for defendant in error.
    1. The demurrer to the declaration was filed by William M. Gwin only, and it is probable that the pleas, which appear on the record, are improvidently placed there; and, indeed, it must be so as to Gwin, for, while his demurrer was pending, he could •not plead without waiving the demurrer; and, as the demand was submitted for decision, and acted on by the court, the plea •was not then on file as to Gwin. If both papers had been •previously on the file, so that it was doubtful which was intended to be relied on, an election was made by submitting •the demurrer. And, after the decision on the demurrer, there was no ground laid, nor leave given, for filing a plea by Gwin, against whom, of course, the final judgment might be entered ■ on overruling his demurrer to the declaration. Thus the appearance of a plea is obviated. As to the propriety of overruling the demurrer, it seems that it was at one time sustained, but on consideration, soon afterwards, during the same term, it was •overruled, and so it should have been when the plaintiff cured his case, by discontinuing as to all the other parties, except Gwin, if the declaration was previously defective for misjoin-der. Authorities need not be cited to sustain this practice of daily occurrence.
   Mr. Justice Thacher

delivered the opinion of the court.

This is an action of assumpsit upon a bill of exchange against the acceptor, Gwin, and the other parties to the bill. Gwin filed his demurrer to the declaration, stating for ground, that he, being the acceptor of the bill, was, under the statute, improperly sued in the action, jointly with the others liable on the bill. The demurrer, after having been sustained, was reconsidered by the court below at the same term and overruled, the suit dismissed as to the other defendants, and judgment entered against Gwin as for failing to take steps to file a plea. In the record there are found the plea of non-assumpsit and several special pleas for Gwin, and another defendant. The precise time, or the circumstances under which these pleas were filed, do not appear, but it is manifest that they were filed before the judgment was rendered upon the demurrer, because at the time when that judgment was rendered, the action was dismissed as to Gwin’s co-defendant, who also is united with him in the pleas. The pleas were.therefore on file at the time of the consideration of the demurrer, and the strong presumption also is, that the pleas and the demurrer were filed simultaneously. Now, it is not permitted both to plead and demur to the same matter, lest an issue in fact and an issue at law, in respect of a single subject, should be produced. The issues are incongruous, because a demurrer merely assigns reasons for not pleading, and is not considered a plea. Steph. Pl. 279 ; Gould Pl. 436. Generally, double pleading, when not warranted by statute, being but a fault in form, can be taken advantage of by special demurrer. But, in a case like this, since a demurrer cannot be filed to a demurrer, perhaps it would have been competent for the plaintiff below to have even disregarded both demurrer and pleas, and claimed a judgment. It is a rule, that a plea of higher dignity is a waiver or renunciation of all pleas of a kind prior in a series. This rule, however, applies to a series of legitimate pleas, and not in cases of double pleading; and even in these cases, if an issue in fact be taken upon any plea, the judgment on such issue either terminates or suspends the action, so that the party cannot resort to any other kind of plea. In the case before us, the plaintiff below accepted the demurrer by joining issue upon it, and disregarded the pleas. The defendant below elected to proceed upon his demurrer rather than upon his pleas, as the result of the judgment then proves. We can see no objection to this course, for even if both parties had remained silent, and made no election, it might have been competent for- the court to have passed upon the question of law addressed to it by the demurrer. At all events, this case presents the peculiarity of a party seeking to take advantage of his own error.

It remains, then, to determine the propriety of the judgment overruling the demurrer. The action was instituted under the act of May 13th, 1837, entitled an act to amend the laws respecting suits to be brought against indorsers of promissory notes.” It was insisted by the demurrer, that this act does not extend to the acceptors of bills of exchange. The plain design, of the act was to prevent a multiplicity of suits, and the consequent accumulation of costs. The second section of the act provides, that in all cases where any drawer, acceptor, or indorser shall have died before the commencement of the suit, a separate action may be brought against the representatives of such drawers, indorsers, or acceptors.” The sixth section provides, that “it shall be the duty of the sheriff, in all cases, to make the money on executions out of the drawer or drawers, acceptor or acceptors,” if possible, before a resort is had to the property of the indorsers or sureties. It is clear, that it was the intention to include acceptors, as well as drawers and indorsers of a bill, and that all must be sued jointly. The whole body of an act must be looked to, in order to obtain its whole scope and intent.

The judgment is therefore affirmed.  