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ration, which it is not necessary to repeat, as leave was given to amend throughout; and on the 6th of December, 1842, a new declaration was filed, consisting of three special counts and the usual money counts, all of which must of course be for the original cause of action.

On the 9th of December, 1842, the defendant pleaded the *general issue of non assumpsit to the whole declara*715] tion; and, for further plea to the three special counts, averred, that the suit was brought to charge him for the debt of John B. Jones, and for no other purpose, and that, there being no evidence of his promise in writing, the suit was barred by the statute of frauds and perjuries. To this the plaintiff replied, that the suit was not so brought, but on original promises made by the defendant. The latter filed a general demurrer to this replication.

On the 12th of December the general issue joined as to the whole declaration appears to have been tried, and a verdict returned for $3,451.88, for which sum, at the same term, judgment was rendered and execution issued.

Nothing further took place till June 5th, 1845, when this writ of error was brought to reverse the judgment, assigning as the ground for it, that the demurrer to the replication should first have been disposed of, and that the statute of frauds pleaded in the preceding plea was a full defence to the matters alleged by the original plaintiff.

This case presents some questions of practice and of pleading which possess no little difficulty. They must be settled chiefly by the reasons which may be applicable to them; and when precedents in this court are not found for a guide in aid of those reasons, they may be strengthened by analogies established in the State courts or in England, where the systems of pleading and practice are somewhat similar. It seems proper, and is conceded, that, in a cause where several pleas are filed, as here, and some terminate in a demurrer and others in an issue to the jury, they should all, as a general rule, unless waived or withdrawn, be in some way disposed of by the court. The leading inquiry, then, is, if enough appears in all the proceedings here to render it probable that the issue, in law no less than in fact, was in some way disposed of, though this is not, eo nomine, mentioned in the record. Assuredly, it is usual in this country, as a matter of practice, when there is an issue of fact and another of law in the same action, to have the question of law heard and decided first. Green v. Dulany, 2 Munf., 518; Muldrow v. McLelland, 1 Litt., 4: Co. Litt., 72. a; Com. Dig., Pleader, Demurrer, 22. The 28th rule for the Circuit Courts accords

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with this, by directing that, in such cases, "the demurrer shall, unless the court shall otherwise, for good cause, direct, be first argued and determined," because a decision on that, if one way, that is, if in favor of the demurrer, will frequently dispose of the whole cause, and supersede the expense and necessity of a jury trial of the other issue, as well as give an opportunity to move for an amendment. 5 Bac. Abr., Pleas and Pleading, No. 1; Tidd, Pr., 476; Dubery v. Paige, 2 T. R., 394. Yet this course *being a matter of sound discretion in the court rather than of fixed or inflexi- [*716 ble right, it cannot always be absolutely presumed to have been pursued. See 28th Rule, ante, and cases before cited; 2 T. R., 394; 1 Saund., 80, n. 1. But as it is usual, and the defendant in this case did not file any exception, as if there had been a refusal by the court to decide first on the demurrer, the presumption does not seem so strong that there had been a refusal or neglect to do it, as that the demurrer had been waived by the defendant, or, if not waived, had been decided, and the particular minute of this on the record omitted. by a mistake of the clerk. Several other circumstances exist, which, in connection with these, contribute to strengthen this last presumption, and to justify us on legal grounds in inferring that one of the above events, either a waiver or decision of the demurrer, actually took place here. First, as to those in favor of the position that the demurrer was waived. Only one cause of action existed here, though set out in several counts. This is stated not only, as before mentioned, in the summons by the original plaintiff, but by the defendant in his special plea, and in the argument of his counsel. The general issue, which was joined and tried, went to the whole declaration; and under that, at the trial, any parol evidence offered in its support could have been objected to as within the statute of frauds, which seems to have been the whole defence, as well as under the special plea setting up this statute against the special counts. This is clear from the books of practice. 1 Chit. Pl., 515; 2 Leigh, N. P., 1066; 1 Tidd, Pr., 646. Though, to be sure, it could be pleaded specially, also, and this may now be necessary under the new rules of court in England. 1 Bingh. (N. C.), 781; 2 Crompt. & R., 627. Hence, from abundant caution lest this objection might not be admissible under the general issue, the special plea here was probably at first filed. But before the trial came on, which was three days after, it is likely that the defendant had become convinced that it was admissible, under the general issue, and therefore went to trial without having the demurrer first argued and decided, or even joined, but waived it.

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If, on the contrary, he concluded to try the issue to the jury first, and then, if not allowed there to make his objection as to the statute, to argue the demurrer afterwards, the inference would be equally strong, that he was allowed to urge the objection at the trial, and had a decision on it there, and therefore waived his special plea and demurrer, and a separate and unnecessary decision on them, afterwards. Such was the presumption in the case of Bond v. Hills, 3 Stew., 283, more fully explained hereafter. It was held likewise in Morrison v. Morrison, 3 Stew. (Ala.), *444, that if a demurrer *717] and an issue of fact were to the same matter, and the latter was tried first, it must be presumed that the other had been waived.

In Dufan v. Couprey's Heirs, 6 Pet., 170, a writ of error was brought, for the same general cause as here, that one of the pleas intended for the court did not appear by the record to have been decided. But the court sustained the judgment below; the other plea, on examination, as will soon be shown to be the case here, being found immaterial after the finding of the jury. Where one material issue is decided going to the whole declaration, it is of no consequence how an immaterial issue going only to a part of it is found, if no injury be done by it to either party. 6 M., 544. And by parity of reasoning, it would be of no consequence whether it was decided at all or not, if enough else is decided to dispose properly of the whole case.

What fortifies these views is the fact, that the defendant never procured a joinder to his demurrer by the plaintiff. As he interposed this defence in a special plea, and filed the demurrer to the replication, it would be material for him, if wanting a decision on them, to get the pleadings finished. He should have moved for a joinder, or got a rule for one, (1 Chit. Pl., 628,) and should likewise have moved for a decision on them, if desired, before a final judgment was rendered on the verdict. It is true that some books appear to consider it the duty of the plaintiff to join in a demurrer soon after it has been tendered by the defendant. But this, it is believed, generally depends on a positive rule of court, which may exist, to require it. 33d Rule of Practice for Courts of Equity, 1 How., 43; William's case, Skinner, 217. And without such rule, as in this case, he may need and take time to decide on making a motion to amend, before joining; and the harshest penalty proper for delay in the joinder would seem to be, that the demurrer may be considered, when requested by the party making it, though no formal joinder has taken place. 3 Lev., 222; Skinner, 217. The omission of the

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defendant, then, to obtain a joinder, to which he was by law entitled, (1 Chit., 647; Barnes, 143,) the omission to add one himself, which is sometimes permissible, (5 Taunt., 164, and 1 Ark., 180,) and the omission to request a decision without any joinder, as he may after much delay, (Skinner, 217,) all appear on the record, and look not only like a waiver of a decision on the demurrer by the defendant, but a neglect of his own duties on the subject. A waiver of a demurrer often takes place, and is, by law, permissible. 1 Tidd, Pr., 710; 1 East, 135; 2 Bibb. (Ky.), 12; 1 Burr., 321; 2 St., 1181. Quilibet renuntiare potest jure *pro se introducto. The want of a decision would, in this aspect [*718 of the subject, seem to be by his own consent; and consensus tollit errorem. The course of the defendant appears to have been, practically and substantially, if not formally, an abandonment of a wish for any separate decision on the demurrer. See cases of this kind. Wright et al. v. Hollingsworth, 1 Pet., 165; Bac. Abr., Error, K., 5; Vaiden v. Bell, 3 Rand. (Va.), 448; Patrick v. Conrad, 3 A. K. Marsh. (Ky.), 613; 2 Id., 227; Casky v. January, Hard. (Ky.), 539. As a plea of the general issue, while a demurrer is pending undisposed of, is considered a waiver of it. Cobb v. Ingalls, 1 Ill., 180.

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In another view of the subject, looking to the defendant's own neglect of the cause, a party cannot be allowed to take advantage of his own wrong or inattention. Thus it has been decided, that a writ of error will not lie for one's own neglect or irregularity. 1 McCord (S. C.), 205; 1 Ark., 90; Kincaid v. Higgins, 1 Bibb. (Ky.), 396; 2 Blackf. (Ind.), 71; 3 McCord (S. C.), 302, 477; Kyle v. Hayle, 6 Mo., 544. It strengthens these conclusions, that the original defendant seems to have long acquiesced in what he now expects to,that he does not appear to have asked for a decision on the demurrer, to have made any complaint at the time of the demurrer not being decided, to have filed any motion about it, offered any bill of exceptions, or even brought any writ of error, till after the lapse of nearly three years. So much as to the waiver of the demurrer. But if the demurrer was not, in truth, waived or withdrawn by the defendant, or cannot be now so considered, from all which appears on the record, the presumption from all is evident, that the demurrer and special plea were actually decided on by the court, and the omission to enter it on the record may be cured by the statute of jeofails. Such a decision would have been its ordinary and proper course of proceeding.

This court has held, in a state of things much like this, as will soon be more fully explained, that it was bound to pre

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sume that "justice was administered in the ordinary form." 4 How., 167. And hence, in 3 Stew. (Ala.), 447, 448, where a decree was averred in the record, but not its form, it was presumed to have been in the ordinary form. The court could not properly have decided and given judgment for the plaintiff in this case, as it did, and, as must be presumed, properly, in the first instance, if the demurrer had not been waived or settled in favor of the plaintiff. Nor was the defendant likely to have acquiesced in the judgment without putting an exception on the record, unless one of these circumstances had occurred. This question has arisen in several of the States, and been decided in conformity with these views. In the case of Cochran's *Executors v. Davis, 5 Litt. (Ky.),

*719] 129, the court very properly adopt a like principle, saying," To this plea there was a demurrer, and although there is no order of record expressly disposing of the demurrer, yet, as the court gave judgment for the plaintiff on the whole record, it must be taken that the demurrer was sustained and the plea overruled." So in substance it was held in McCollom v. Hogan, 1 Ala., 515; and in Bond v. Hills, 3 Stew. (Ala.), 283, where, as in this case, there was a plea, amounting to the general issue, or containing what was admissible under it, and it did not appear distinctly to have been disposed of, but the general issue was tried, it was held to be presumed that the defendant had the full benefit of the objection on the trial, and error will not lie. It is true that where one issue in a cause is found one way and another on a matter entirely distinct is not disposed of, it may not be proper always to consider it as decided. Pratt v. Payne, 5 Mo., 51. But here the questions involved in both issues were the same; both related to the same cause of action, and both to the same defence. The cases on this subject are so much more numerous in the States than in England or in this court, that we oftener find it necessary to resort to them for analogies in support of our reasoning as to what should, under all the facts, be presumed. But in this court, at this very term, we have a strong illustration of the correctness or truth of such a presumption, in the case of Harris v. Wall; where, on similar findings by a jury on some pleas and a demurrer to others, and a judgment for the defendant without any entry made specifically that the demurrer was disposed of, it happens, in point of fact, that it was decided, and the judge on that circuit, now present, has with him his written opinion, which he delivered when deciding it. So in Stockton et al. v. Bishop, 4 How., 167, in a writ of error, where a verdict appeared and a judgment, but not for any particular sum,