#### William F. Bradshaw v. Peter McKinney.

Error to Lee.

I. Practice — demurrer pending. It is error to render judgment by default, and direct the clerk to assess the plaintiff’s damages, while a demurrer to one count of the declaration, or one of the several pleas remains undisposed of.

, This cause was heard in the court below, at the September term, 1841, before the Hon. Thomas C. Browne. Judgment was rendered for the plaintiff for §139.80 damages and costs of suit.

O. Peters, for the plaintiff in error.

L. B. Knowlton, for the defendant in error.

Treat, Justice,

delivered the opinion of the court: Assumpsit *57on a note and guaranty. The declaration contains two counts. The defendant filed four pleas to the first count, and a demurrer to the second count. There was a demurrer to the third and fourth pleas, which was sustained. The record shows that the court, without deciding the demurrer to the second count, or noticing the first and second pleas, directed the clerk to assess the plaintiff’s damages, and rendered judgment on the assessment. The decision is now assigned for error.

It was clearly erroneous to render judgment without [* 55] first deciding the demurrer. McKinney v. May, 1 Scam. 534; Nye v. Wright, 2 Scam. 222. It was also erroneous to render judgment without first trying the issues tendered by the defendant, on his first and second pleas. Manlove v. Bruner, 1 Scam. 390; Lyon v. Barney, 1 Scam. 387.

For these errors the judgment of the circuit court is reversed with costs, and the cause remanded for further proceeding.

Judgment reversed.