#### Wm. Beer, H. Beer, and Thomas Beer, Plaintiffs in Error, v. Daniel Philips, Defendant in Error.

ERROR TO ST. CLAIR.

If, after the decision of the court, overruling a demurrer, the defendant rejoins to the replication and issue is taken thereon, it is a complete waiver of the demurrer.

After abandoning a demurrer, the decision upon it can not be assigned for error.

Opinion of the Court by

Chief Justice Reynolds.

This was an action of trespass quare clausum fregit, commenced by Philips against the Beers in the court below. The defendants below pleaded not guilty, and liberum tenementum. Upon the first plea, issue was taken, and to the second, the plaintiff replied specially—to this special replication the defendant demurred, and the court overruled the demurrer. The judgment of the court in overruling this demurrer is assigned for error. We have not deemed it material to set out the facts disclosed by the replication, because we think the case can be disposed of without a decision upon its merits. After the decision of the court, overruling the demurrer, the defendant rejoined to the replication, and took issue thereon. This we consider was a complete waiver of the demurrer. If the court below erred, the defendants in that court, to have availed themselves of that error, should have abided by their demurrer, and not traversed the replication. After abandoning the demurrer, they can not assign the decision upon it for error. The judgment of the court below is affirmed. (1)

Judgment affirmed.

(1)

Such is the rule of pleading to the merits. Peck v. Boggess, 1 Scam., 281. Buckmaster v. Grundy, id., 312. Gilbert v. Maggord, id., 471. McFadden v. Fortier, 20 Ill., 509. But it is otherwise in pleas in abatement. It was once so held in Delahay v. Clement, 2 Scam., 575; but this decision was overruled in the same case in 3 Scam., 201. And it is now settled that if a demurrer to a plea in abatement be sustained, and the defendant answer over, he is not thereby precluded from examining the decision on the demurrer in an appellate court. Delahay v. Clement, 3 Scam., 201. Weld v. Hubbard, 11 Ill., 574.

If an unanswered demurrer is on record, and the party filing it goes to trial by consent, it will not be cause for reversal of the judgment. Parker v. Palmer et al., 22 Ill., 489.