#### William F. Bradshaw v. Molon S. Hoblett.

Error to Lee.

I. Practice — demurrer pending, no final judgment. Where a demurrer remains undecided to a part of the counts of a declaration, it is erroneous to try the cause and render final judgment against the defendant upon the other counts, (a)

*56This cause was heard in the court below, at the September term, 1841, before the Hon. Thomas C. Browne.

O. Peters, for the plaintiff in error,

cited Nye v. Wright, 2 Scam. 222; Weatherford v. Wilson, 2 Scam. 256.

J. H. RALSTON, for the defendant in error.

(a)

Cases Citing Texts. To try issue of fact, while issue of iaw remains undetermined, is erroneous. Moore v. Little 11 Ill. 549, 550.

While any plea remains undisposed of, it is erroneous to proceed to trial on other pleas and issues. Richeson v. Ryan, 15 Ill. 13; Sammis v. Clark, 17 Ill, 398, 399.

Soates, Justice,

delivered the opinion of the court.* Assumpsit. The two first counts are on promissory notes made by the plaintiff to one Morehouse, and by him assigned to the defendant. The third and fourth counts are upon a guaranty made by the same to the same, and assigned in like manner.

There was a demurrer, alleging and pointing out defects in each count, which the court overruled as to the two first counts. [® 54] The judgment upon the demurrer, is in these words: “It is ordered by the court, that the said demurrer be overruled as to the first and second counts, in the said declaration, and that the said defendant be ruled to plead to the said counts instanter.”

The defendant filed three pleas to those two counts, upon which issues were joined. ' The issues were submittted to the court, and found for the plaintiff, and judgment rendered for §393.47 damages, and cost of suit.

The plaintiff assigns for error, that- the court proceeded to try the cause, and render judgment for the defendant, without deciding. the demurrer to the third and fourth counts.

The cases of Nye v. Wright, 2 Scam. 222, and Weatherford v. Wilson, 2 Scam. 256, are in point. This court held it to be erroneous to render final judgment, pending a demurrer, and without disposing of it.

The judgment is therefore reversed with costs, and the cause remanded for further proceedings.

Judgment reversed.